Ng v Eulbertie Investments Pty Ltd [2026] NSWCATAP 122;

(1) ordered the Tenants to pay the Landlord rent arrears of $11,587.68, water usage charges of $237.63 and pre-judgment interest on $11,825.31 at 8.35%, being $410.95: totalling, $12,236.26;

(2) dismissed a claim for compensation by the Tenants in matter 2024/ 00458993; and

(3) granted leave to the Landlord to relist the matter for any correction of the Tenants' unpaid rent calculationon or before 14 May 2025, with the intention that any application would be determined in chambers on the papers (the 29 April Decision).

1. The reasons for the granting of leave to the Landlord to re-list the matter were set out at paragraph [16] of the 29 April Decision, where the primary member said:

In breach of the Agreement [3.1] the tenants did not pay the rent on time and there was a significant amount of rent arrears owing as proved by the rent ledger, showing arrears of $12,347.18. The tenants provided evidence of a deposit of $2,785.65 to the landlord on 17/6/24 which the ledger records as a payment of $2,026.15. The tenants contend this is an error in the landlord's ledger to be allowed in their favour for $759.50. The landlord contends it is prejudiced as this evidence was presented at the hearing for the first time and it has not had an opportunity to check its bank statement. The Tribunal finds it is in the interests of justice to give the landlord an opportunity to check its bank statement, and if there is no record of having received that higher amount in the bank statement, upon the landlord's application the Tribunal will amend the order to increase the amount of the money order by $759.50, as a clerical error under the slip rule. Leave is given to the landlord to relist the matter with relevant evidence, before me for amendment to be decided on the papers in Chambers, if necessary.

1. Thereafter, the Landlord made an application to increase the amount awarded for rent arrears by $759.50 and on 26 August 2025, following a further hearing at which both the Tenants and the Landlord appeared, the primary member increased the amount payable by the Tenants for unpaid rent by $759.80, by ordering the Tenants to pay the Landlord $759.80 (26 August Decision).
2. The Tenants filed their Notice of Appeal on 29 August 2025 which was within the time required by cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) for appealing the Tribunal's 26 August Decision.
3. Although the Notice of Appeal identified that it was in respect of the 26 August Decision and that the Tenants appealed the order for the Tenants to pay the Landlord a further $759.80, it was clear from the Tenants' attachment to the Notice of Appeal that they also appealed the 29 April Decision in so far as the Tribunal ordered the Tenants to pay rent arrears of $11,587.68.
4. Although the Notice of Appeal did not seek an extension of time to appeal the 29 April Decision, because the Tenants are self-represented, the factual background to both decisions was the same, it is clear from the attachments to the Notice of Appeal that the Tenants were intending to also appeal the 29 April Decision, and there was no objection from the respondent or a submission to the effect that they were being taken by surprise or prejudiced, to the extent required, we have decided to extend time for the appellants to appeal the 29 April Decision in respect of the order for the payment of rent arrears of $11,587.68.
5. The Notice of Appeal including the attachments to it, in summary contends that:

(1) The 29 April Decision incorrectly found that the appellants owed $11,587.68;

(2) That having reviewed records and preparing a complete reconciliation, the correct amount of rental arrears was $10,374.05;

(3) The finding of $11,587.68 arose because the primary member relied solely on figures provided by the Landlord's representative without properly considering the Tenants' evidence of payments;

(4) The finding made in the 26 August Decision that the Tenants owed a further $759.50 was not fair and equitable or was against the weight of evidence, because, as stated under the heading "Grounds of Appeal" in the Notice of Appeal:

1. The Tribunal failed to properly consider evidence that the alleged arrears, including $759.50 for water usage, had already been paid before the hearing.

2. The Applicant did not comply with an earlier tribunal order to provide a complete rent Ledger under the residential tenancies Act 2010, yet the tribunal relied on incomplete transaction records.

3. The Tribunal relied on the Applicant's claimed figures without reviewing the appearance receipts, payment confirmations, and corrected Ledger showing no outstanding arrears.

4. The Tribunal did not provide procedural fairness. I was not given a full and fair opportunity to explain my position, and my evidence was overlooked or disregarded.

5. The Tribunal Member displayed unprofessional conduct and apparent bias, including criticising me as a "property agent" despite my not working in the industry, and failing to consider that English is not my first language.

6. The orders made were based on incorrect or incomplete information and have caused unnecessary financial and personal prejudice.

(1) in so far as the 29 April Order is concerned, the amount of $11,587.68 should be substituted with $10,374.05; and

(2) the order made on 26 August 2026 for the payment by the Tenants of a further $759.80 should be set aside.

(1) Leave was given to the Landlord to be legally represented on the appeal on condition that no legal costs may be recovered by it in the appeal;

(2) An application to stay the 26 August Decision was dismissed; and

(3) Orders were made for the parties to lodge with the Tribunal and provide to each other:

(a) the evidence provided to the Tribunal at first instance which was intended to be relied on;

(b) any evidence that was not provided to the Tribunal below on which it was intended to seek leave to rely;

(c) written submissions; and

(d) if what happened at the hearing at first instance is relied on, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing.

1. In addition to their application for a stay of the 26 August Decision and the Notice of Appeal which were filed on 29 August 2025 and the documents attached to both, the Tenants relied on its "Submissions to the Appeal Panel" filed 9 October and 28 November 2025.
2. Significantly, notwithstanding the Tenants' assertions of a denial of procedural fairness, bias and "unprofessional conduct" in the conduct of the hearing and the directions made on 12 September 2026, the Tenants, although providing a USB stick did not provide the Appeal Panel with a transcript of any part of either hearing.
3. The Landlord relied on the submissions that formed part of Applications for Miscellaneous Matters filed 16 September and 22 October 2025 and a tabbed bundle of documents including submissions that was filed on 10 November 2025.

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 to the Tribunal's Appeal Panel does not provide an unsuccessful party with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. To succeed in an appeal from a decision of the Consumer and Commercial Division, an appellant must demonstrate either an error by the Tribunal on a question of law, which may be argued as of right; or that leave (permission) be granted to bring the appeal for a reason under clause 12(1) of Schedule 4 of the NCAT Act (which is expanded on below).
4. 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. A question of law can include whether a party was denied procedural fairness.
5. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, the Appeal Panel, at [25] provided further guidance in relation to what is a question of law. In summary:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, the question of law is the subject of the appeal;

(3) A question of law means a "pure question of law" which can be decided without any reference to facts or may proceed by reference to assumed facts and whose character as a question of law can be recognised on the face of the question and does not depend on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons; and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. An error on a question of law is an appeal as of right (if established) and does not require leave.
2. Where the grounds of appeal do not raise a pure question of law, an appellant may seek leave to appeal.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) 12(1)(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. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact.
2. In 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 an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Consistent with the authorities that dictate that procedural fairness challenges as a question of law are to be considered before any other challenges, (YHY v YHZ [2024] NSWCATAP 117 at [54] & Boreland v Brewis [2024] NSWCATAP 140), we will firstly consider the Tenants' procedural fairness challenge including the claim of apprehended bias.
2. We will then consider the Tenants' application for leave to appeal including the Tenants' application to rely on evidence that was not before the Tribunal for either hearing.
3. The Tenants contend under the headings of "Grounds of Appeal" and that "Decision not fair and equitable" in respect of the 26 August Decision, that the Tribunal did not provide procedural fairness and did not give the Tenants a fair opportunity to explain their position, and in so far as a consideration of the evidence was concerned, ignored explanations, focused on minor email delays rather than payment records and did not properly examine documents provided by the Tenants.
4. Related to the procedural fairness ground is a complaint of bias and unprofessional conduct, with the Tenants submitting that the primary member yelled at Christine Ng, criticised her as a property agent and failed to consider that English is not her first language.
5. Principles relevant to a lack of procedural fairness ground of appeal, were summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140 (References to authorities removed):

59 In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. .... Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act).

60 It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice ....

62 Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: .... Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.

63 If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).

64 As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": ...

Consideration

65 Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

66 As Justice Basten stated 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] HCA 6; (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].'"

67 If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made .... Finding that a properly conducted application would have inevitably produced the same result is not done lightly: ....

(1) In the 29 April Decision, the Tribunal:

(a) considered the Tenants' evidence of a deposit of $2,7865.65 having been made to the Landlord on 17 June 2024 which the Landlord's ledger recorded as $2,026.15, and the Tenants' contention that the difference was an error in the Landlord's ledger to be allowed in the appellants' favour for $759.50 (See at [16]);

(b) rejected the Landlord's costs for cleaning and gardening at the end of the tenancy (See at [16] to [20];

(c) referred to, at paragraph [17], but rejected the Tenants' claim for a reduction in the amount owed for rental arrears because of a claimed payment of $194.91 for water usage made on 22 September 2022; and

(2) In the 26 August Decision, the Tribunal refers at [6] to the Tenants disputing the Landlord's rent schedule because it is not in the form and style of a rent ledger as generated by proprietary software used by managing agents,but determines that it is nevertheless a "business record and [has] probative value as a business record".

1. It therefore appears on the face of both decisions that the primary member considered arguments made and evidence relied on by the Tenants.
2. Further we were not taken to anything in either written decision nor a typed transcript of relevant parts of either hearing (which the parties were directed to provide if what happened at the hearing at first instance is relied on) that suggests that the Tribunal did not give the Tenants an opportunity to present their case or predetermined the matter or that there is reason to be concerned of any actual or apprehended bias.
3. We are therefore not satisfied that the Tenants were denied procedural fairness and to the extent the appeal relies on the ground of a breach of procedural fairness or apprehended bias, it is rejected.
4. The Tenants otherwise seek leave to appeal because, according to the Tenants, one or other of the decisions in respect of rent arrears was against the weight of evidence, was not fair and equitable or because of significant new evidence.
5. As noted above, if successful, the Tenants seek that the amount ordered in the 29 April Decision for rental arrears be reduced from $11,587.68 to $10,374.05; and that the further order made on 26 August 2025 for the payment of a further $759.49 towards rental arrears be set aside.
6. In so far as rental arrears were concerned, the Landlord relied on a "Rent Schedule" for the premises from 5 June 2021 to 30 November 2024. It recorded the start date of the rent period, the number of days in the period, the rent payable, the rent paid, any variance between the rent payable and the rent paid for the period and the cumulative balance of rent in credit or arrears. It identified rental arrears at the end of the last period of rent of $12,347.18.
7. In respect of that amount of $12,347.18, the Tribunal said:

16. In breach of the Agreement [3.1] the tenants did not pay the rent on time and there was a significant amount of rent arrears owing as proved by the rent ledger, showing arrears of $12,347.18. The tenants provided evidence of a deposit of $2,785.65 to the landlord on 17/6/24 which the ledger records as a payment of $2,026.15. The tenants contend this is an error in the landlord's ledger to be allowed in their favour for $759.50.

1. The Tribunal therefore ordered that the unpaid rent was $11,587.68, rather than $12,347.18, a difference of $759.50.
2. The Tenants submit that after reviewing records and preparing a complete reconciled ledger (attached) (Tenants' Ledger), the correct amount of arrears was only $10,374.05, and that the discrepancy of $1,213.63 arose because the Tribunal relied solely on figures provided by the Landlord without properly reviewing or considering the Tenants' payment evidence, "including a payment of $194.91 and other receipts"
3. The referred to Tenants' Ledger, being the new evidence the Tenants sought to rely on, was not before the primary member for either hearing.
4. Although the evidence included a Commonwealth Bank receipt for the payment of $194.91 to the respondent on 22 September 2024 for "water rate 10 May to 7 Aug 24", it was not part of an affidavit nor was it explained how it fits into the calculation of unpaid rent, although, as noted above, the Tribunal dealt with it at paragraph [17] of the first hearing:

In their opening the tenants conceded the water usage claim for $237.63. During the hearing they sought to resile from that concession as they said there was a further payment of $194.91 for water usage made 22/9/24 which was not recorded in the ledger. The landlord says that it was a rent ledger and did not record claims or payments for water usage. I accept the landlord's evidence, and in any case this Tribunal does not permit the tenants to resile from their concession.

1. We were not taken to any other receipts that were before the Tribunal.
2. Clause 12 of Schedule 4 provides that:

(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because -

...

(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 respect of the Tenants' Ledger which the Tenants now sought to rely on, Christine Ng said that:

Significant new evidence - respondent's ledger

I seek to produce my own detailed Ledger of payments and deductions, which was not reasonably available in its complete form at the time of the original hearing. The applicant only provided partial transaction records that do not clearly identify which payments were for rent, wattage usage, or agreed repair deductions.

My Ledger includes:

All rental payments made, including $2795.65;

Payment of water usage charges $759.49;

Additional payment of $194.91 which should reduce any outstanding arrears;

Deductions for property repairs and other agreed charges.

The ledger is supported by receipts, bank statements and correspondence with the Applicant. Producing this Ledger will provide a clear, accurate record of payments, demonstrating that the amounts claimed by the Applicant were overstated and ensuring the Appeal Panel can make a fair an informed decision.

Why the Evidence was not available at the time of the hearing

At the time of the original hearing, I had not yet fully compiled a complete and detailed ledger that reconciled all rental payments, water usage payments, repair deductions, and additional payments such as $194.91. While I had receipts and partial records, they were scattered across emails, bank statements, and invoices.

The process of consolidating these documents into a clear, accurate ledger required time to verify each payment, match it to be appropriate dates and charges, and ensure it was fully supported by evidence. This detailed ledger was therefore not reasonably available at the time of the hearing, and producing it now provides the Appeal Panel with a complete and reliable record of payments and deductions that directly affects the determination of alleged arrears.

1. The Tenants' Ledger on its face appears to be a summary of payments made by the Tenants between June 2021 and September 2024 including payments other than for rent on 5 July 2022, 5 December 2022, 6 May 2023 and 29 June 2024, and was not a summary of other records that were available at the hearing before the primary member that established the entries in the schedule.
2. Although the Tenants' Ledger is new in the sense that it was prepared after the August 2025 hearing, the transactions that it claims to be a record of are up to June 2024, being ten months before the April 2025 hearing and fourteen months before the August hearing. Further, although the Tenants give some explanation to why it was not provided at the original (April 2025) hearing, there appears no explanation for why it was not provided to the Tribunal for the August 2025 hearing.
3. We are therefore not satisfied that the Tenants' Ledger that the Tenants now seek to rely on is significant new evidence that was not reasonably available to the Tenants at either the April or the August 2025 hearings.
4. In so far as the finding of rent arrears of $11,587.68 is concerned the Tribunal:
   • gave a reasoned approach to the determination in which it relied on the Landlord's Rent Schedule;
   • deducted the amount of $759.50 because of evidence of a deposit of $2,785.65 but granted leave to the respondents to re list its application because that evidence had only been provided at the hearing; and,
   • for the reasons referred to at paragraph [17], rejected a claim that a payment of $194.91 for water usage should be deducted from the outstanding rent claim.
5. We are therefore not satisfied that there has been any error established in the Tribunal's consideration of the Landlord's rent arrears claim in the April 2025 hearing or that the Tenants may have suffered a substantial miscarriage of justice in the 29 April Decision for a reason set out in clause 12(1)(a) or (b) of Schedule IV_._
6. The 26 August Decision concerned an application by the Landlord in relation to the amount of $759.49 that was deducted from the amount of $12,347.18 that was identified on the Landlord's Rent Schedule.
7. In considering that amount, the Tribunal said:

6. The material fact is set out in the "Rent Schedule" which records rent owing and paid. The last entry made on 30/11/24, being the day after the tenants gave vacant possession, shows total rent arrears owing of $12,347.18. The tenants dispute the "Rent Schedule" and contend it is not in the forma and style of a rent ledger as generated by proprietary software used by managing agents. This arises in part as the proprietary software is used by agents in order to comply with trust accounting principles, but the landlord's record is not a trust account and not subject to the same requirements. Nevertheless it is a business record and have probative evidence as a business record. The Tribunal accepts the accuracy of the "Rent Schedule".

7. The parties were in dispute about the treatment of a payment of $2,785.65 by the tenants on 17/6/24. The treatment of this amount can be reconciled as on 20/6/24 the landlord's director sent an email asking the tenants whether the payment of $2,785.65 was to be credited to [rent] only, or to rent and water usage. He received no answer that day and on 17/6/24 (the same day) credited part to water usage arrears $759.50 and the balance of $2,026.15 to rent arrears.

Consideration

8. The Order made 29/4/25 was for the tenants to pay rent arrears of $11,587.68. This was an error, as the Rent Schedule shows a greater amount owing. The difference is $759.50 ($12,347.18 less 11,587.68) which is the amount credited to water usage arrears on 17/6/24.

9. The appropriate Order to correct this error, is an Order for the tenants to immediately pay an additional sum of $759.50 for rent arrears. The Tribunal does not amend Order 1 made 29/4/25 as it does not know whether the amount so ordered has been paid in part or whole and it is appropriate to make a separate order so as to avoid any confusion.

1. Mindful that the Tenants did not put into evidence an alternative schedule of payments made with a running balance and that we have found that the Tenants Ledger that the Tenants now seek to rely on in the appeal is not significant new evidence that was not reasonably available at the hearing, it was open to the primary member to:

(1) rely on the Landlord's Rent Schedule as a business record, and find that:

(a) the amount of $2,785.65 that was paid by the appellants on 17 June 2024, $2,026.16 was applied to rent with $759.50 being applied to unpaid water usage, and

(b) that $12,347.18 was in fact owing by the Tenants to the Landlord for unpaid rent; and therefore,

(2) order that the further amount of $759.49 was owing by the Tenants to the Landlord for unpaid rent.

1. We are therefore not satisfied that there has been any error established in the Tribunal's consideration of the Landlord's rent arrears claim for the amount of $759.49 in the August 2025 hearing or that the Tenants may have suffered a substantial miscarriage of justice in the 26 August Decision for a reason set out in clause 12(1)(a) or (b) of Schedule IV_._
2. For the forgoing reasons, to the extent sought, leave to appeal is refused.

1. The Landlord seeks an order that the Tenants pay its costs.
2. In support of its application for costs the Landlord relies on its submissions at paragraphs [52] to [59] of its 9 November 2025 written submissions which were supplemented by further oral submissions at the hearing of the appeal, and a "Without prejudice, save as to costs", 'Calderbank' letter from the Landlord's solicitor to the Tenants dated 20 January 2026, which, as discussed at the hearing, was not read until after the substantive matter had been considered.
3. The Tenants oppose the Landlord's costs application.

1. Section 60 of the NCAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs, but that the Tribunal may award costs in relation to proceedings before if it is satisfied that there are special circumstances warranting an award of costs, and that costs includes "the costs of, or incidental to, proceedings in the Tribunal".
2. Rule 38 of the NCAT Rules provides that in respect of proceedings in the Consumer and Commercial Division of the Tribunal, that despite s 60 of the NCAT Act, the Tribunal may award costs in the absence of special circumstances, if the amount claimed or in dispute in the proceedings is more than $30,000.00.
3. The effect of the above provisions is that, unless r 38 applies or there are special circumstances, each party should pay their own costs, but if r 38 applies, the Tribunal can award costs in the absence of special circumstances.
4. Rule 38A of the NCAT Rules provides that the Appeal Panel must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
5. In circumstances where the amount in dispute before the Tribunal was clearly less than $30,000.00, there is a two stage process to making a costs order under s 60(2). First, the Tribunal must be satisfied there are special circumstances. Secondly, there is a discretion to be exercised as to whether those circumstances warrant an award for costs being made and, if so, on what terms.
6. Pursuant to ss 60(3), in determining whether special circumstances exist, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

1. It does not however follow that where one or more of the abovementioned subsection 60(3) factors are established a cost order should follow. It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to "special" circumstances that justify departing from the general rule that each party bear their own costs. BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87.
2. Relevant principles were summarised in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273, where the Appeal Panel said at [6]- [15]:

"6. The general rule set out in s 60(1) was ...:

'... designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable...

7. In Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 the Appeal Panel said, at [8], that the discretion to award costs had to be exercised judicially:

'...having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. ...

8. Section 60(2) says that the Appeal Panel may award costs to a party 'only if' satisfied there are special circumstances warranting an award of costs.

9. Section 60(3) sets out a non-exclusionary list of factors to which an Appeal Panel may have regard in determining whether special circumstances warranting an award of costs exist.

10. 'Special circumstances' are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary...

11. However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out.

12. Even if satisfied that there are special circumstances, the Appeal Panel must further be satisfied that they are circumstances 'warranting an award of costs' ...

13. The exercise of the discretion requires the Tribunal 'to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs': ....

14. He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist ....

15. Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: ...."

1. In Guo v The Owners - Strata Plan No 70067 (No 2) [2019] NSWCATAP 266 at [15] the Appeal Panel said that the assessment of whether special circumstance exist involves:

The exercise of a value judgement carried out by way of comparison between what is not special, and what is special. There are no scientific means by which the former can be ascertained. The valuative process is necessarily one of impression informed by the particular provisions of section 60.

(1) submits that special circumstances exist because the appeal was "hopeless from the outset", which position the Landlord says it communicated to the Tenants, including by a "without prejudice save as to costs" letter from its solicitor to the Tenants on 20 January 2026, and that the Tenants unreasonably refused to accept the offer made in its solicitors 20 January letter; and

(2) refers to and relies on ss 60 (3) (a), (b), (c) and (e) of the NCAT Act.

1. In so far as the Landlord relies on its solicitors 20 January letter and submits that a costs order is justified because the Tenants unreasonably refused to accept it, the Appeal Panel in Thompson v Chapman [2016] NSWCATAP 6 at [91] said:

91 .... From cases such as SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37], Miwa Pty Ltd v Siantan Properties Pty Ltd (No2) [2011] NSWCA 344 and Nu Line Construction Group Pty Ltd v Fowler [2012] NSWSC 816 at [48]. The following principles can be derived in respect of whether a special order for costs should be made:

(1) there must be a real and genuine element of compromise;

(2) the refusal must be unreasonable;

(3) the reasonableness in rejecting an offer must be considered at the time the offer is made, not with the benefit of hindsight;

(4) relevant factors in relation to whether the rejection was unreasonable include:

(a) the stage of the proceedings at which the offer was received;

(b) the time allowed to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for indemnity costs in the event of rejection.

1. The letter of offer:
   • Was dated 20 January 2026 and emailed to the Tenants at 12.46 pm on 20 January 2026, being the day before the appeal was listed for hearing.
   • Referred to the "voluminous submissions and correspondence" and contended generally that the appeal is doomed to fail, legally misguided, frivolous, and vexatious.
   • Contended that the Tribunal would be amenable to making a costs order in the Landlord's favour without in any way contending how the Landlord would be entitled to such an order in light of the condition for the Landlord being granted leave to be legally represented that no legal costs may be recovered by it in the appeal.
   • Offered to resolve the appeal on the basis of the Landlord paying the Tenants $1.00, the parties agreeing to the hearing of the appeal being vacated and the appeal being dismissed, the parties undertaking not to commence any further proceedings in respect of "these or related matters", and the parties signing a settlement deed to give effect to the agreement.
   • Remained open for acceptance to 7.00 pm on 20 January.
   • Stated to the effect that it was a 'Calderbank' offer.
   • Stated that if the Landlord obtained an outcome more successful that contained in the offer the Landlord would seek an order that the Tenants pay its costs on an indemnity basis.
2. Because the offer was made in the afternoon of the day before the hearing and mindful that the Tenants were self-represented, and the offer did not explain in any way why it was asserted that the appeal was doomed to fail, misguided and frivolous and vexations or why the Landlord could be entitled to costs despite the condition that no costs could be recovered by it on the appeal, which the Tenants referred to in their reply email at 3.54 pm noting that if costs were now to be sought, the Tenants opposed the Landlord being legally represented at the hearing of the appeal, we are not satisfied that the refusal to accept the offer was unreasonable.
3. Further, because the grant of leave for representation was conditional on the Landlord not being entitled to recover costs, which condition has not been the subject of review or application for it to be set aside, and the Tenants' (who were self-represented) appeal was largely dependent on the Tenants' Rental Ledger which we ultimately did not have regard to because it was not significant new evidence that was not reasonably available at the time of the hearings, we are not otherwise satisfied that special circumstances exist because of the Tenant's conduct or any weakness or lacking in substance of the Tenants' appeal.
4. We therefore reject the Landlord's costs application and will make no order as to costs with the intent that each party is to pay its own costs of the appeal.
5. Further, even if we found that special circumstances existed, because the grant of leave for the Landlord to be legally represented was conditional on the Landlord not being entitled to recover costs, we would nevertheless decline to exercise our discretion to award costs.

(1) The time for filing the Notice of Appeal in respect of the Tribunal's 29 April 2025 decision is extended to 29 August 2025.

(2) Leave to appeal refused.

(3) The appeal is 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.