Nobrega v Chavez

1. The appellant was the landlord of premises in Dulwich Hill, New South Wales which were subject to a residential tenancy agreement in favour of the respondents and Rose Murphy.
2. The initial tenancy agreement commenced on 22 January 2021 at a rent of $495 per week. A bond in the amount of $1980 was lodged with the Rental Bond Board.
3. The tenants vacated the premises on 19 July 2024, by which time the rent had increased to $700 per week.
4. On 29 July 2024 Ms Chavez filed an application in the Tribunal seeking an order for the refund of all but $715 of the bond.
5. The application was listed for hearing and conciliation (in a Group List) on 14 August 2024. On that occasion, the tenants failed to attend, and the bond was released to the landlord.
6. The proceedings were then listed for final hearing on 10 December 2024. On that occasion the landlord did not attend and the Tribunal, being satisfied that the landlord had been given notice of the hearing, determined that:

"6 ... the interests of justice in this case require the matter proceed in the absence of the tenant having regard to the fact that the tenancy has come to an end, the tenant appears to be out of pocket and what should be done with the bond money remains to be determined.

7 Accordingly, the Tribunal is satisfied the requirement of Rule 35(2)(b) of the Civil and Administrative Rules 2014 have been met in that service of the notice of hearing has been appropriately provided and the interests of justice require the matter to be dealt with in the absence of the landlord."

1. Both the landlord and the tenants had filed evidence in advance of the hearing. The Tribunal considered that evidence and found that the landlord was entitled to payment of $783 in respect of:
   • cleaning $470;
   • replacement of garage remote $240;
   • replacement of missing keys $63;
   • replacement of globes in the range Hood $10
2. The Tribunal considered and rejected claims by the landlord in respect of:
   • fumigation $242;
   • replace halogen lights $29.95;
   • rent $700
3. In respect of the cleaning the Tribunal allowed the amount of a quotation for "end of lease cleaning" obtained by the tenants on 18 July 2024 and disallowed the amount claimed by the landlord ($858), on the basis that the landlord's agent had requested the tenants to cancel the contractor who had provided the quotation to the tenants. The Tribunal concluded that it would not be reasonable to allow the $858 the subject of the invoice presented by the landlord in respect of cleaning carried out on 22 July 2024, when the landlord's agent had dissuaded the tenants from having the premises cleaned for a lesser amount.
4. The Tribunal ordered the landlord to pay the balance of the bond, after deduction of the $783 to which the Tribunal had determined the landlord was entitled, that is $1,197 to the tenants immediately.
5. The landlord filed a Notice of Appeal and an application for a stay on 18 December 2024, within the 14 days within which appeals in residential proceedings are required to be filed pursuant to r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
6. On 17 January 2025, the application for a stay was refused, and directions were made for preparation for the hearing of the appeal. The appeal was fixed for hearing on 3 April 2025.

1. An appeal to the Appeal Panel from a final decision of the Tribunal may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"37 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.

38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly [Shire Council v Styles [2024] NSWCATAP 104] at [28]- [32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A); see too: at - , [109]-[114].

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal against decisions of the Consumer and Commercial Division of the Tribunal pursuant to s 80(2)(b) of the NCAT Act only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

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

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

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice 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. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(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; or

(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. It is important to note that an appeal is not an opportunity for the losing party to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. The only ground of appeal identified by the appellant in the Notice of Appeal was as follows:

"The landlord, Tony Nobrega, called NCAT the day before the hearing to confirm the status of the proceedings. He spoke with [xxx] a staff member at NCAT, who advised him that the hearing had been adjourned. Based on this information, the landlord did not attend the hearing, assuming it would be rescheduled. As a result, the Tribunal proceeded with the hearing in the landlord's absence, which prevented him from fully presenting his case. Although the Tribunal admitted the documents submitted by the landlord, it is possible that these were not given full consideration due to his absence."

1. The name of the Tribunal staff member to whom the appellant claimed to have spoken was stated in the Notice of Appeal, we have not considered it necessary to include it in these reasons.
2. As the Appeal Panel held in Cominos v Di Rico [2016] NSWCATAP 5, at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."

1. Adopting the approach to grounds of appeal drafted by unrepresented parties suggested in Cominos v di Rico, we understand the appellant to raise the question whether he was denied procedural fairness through the hearing proceeding in his absence when he had not been given the opportunity to attend.
2. Whether there has been a denial of procedural fairness is a question of law: Donohoe v Albulario [2025] NSWSC 9, at [39].
3. In his oral submissions to the Appeal Panel, the appellant submitted that the Tribunal had failed to deal with all of the matters which he had identified in his documents filed with the Tribunal. The appellant also raised, in the section of his Notice of Appeal dealing with why the decision was against the weight of evidence, the proposition that the Tribunal had not given the appellant's documents "the full weight they warranted".
4. As the Appeal Panel indicated in Cusumano, at [32(4)], questions of law include:

"Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA).

1. We are satisfied that the appellant fairly raised a question of law concerning whether, by failing to deal with all aspects of the case propounded by the appellant, the Tribunal failed to respond to a substantial, clearly articulated argument based on established facts.
2. The appellant sought leave to appeal on the ground that the decision was not fair and equitable and on the ground that the decision was against the weight of evidence.
3. In respect of the decision not being fair and equitable, the appellant raised the same issues as were raised by the ground of appeal identified in the Notice of Appeal, that is that he had been advised the hearing had been adjourned and therefore did not attend.
4. In respect of the decision being against the weight of evidence, the appellant submitted that, although the Tribunal had considered the documentation he had submitted in preparation for the hearing "it appears that the Tribunal did not give them the full weight they warranted" and that "the Tribunal appeared to place greater emphasis on the tenant's claims, which were less substantiated."

1. Although the appellant maintained at the hearing of the appeal that he had been told by a member of the Tribunal's staff that the hearing had been adjourned, he had not filed any evidence to establish that proposition.
2. The respondents explicitly submitted in their Reply to Appeal that the appellant had not provided any evidence to support his case that he had been misled by a member of the Tribunal's staff.
3. At the hearing of the appeal, the appellant sought to provide to the Appeal Panel a copy of an email on his phone. The Appeal Panel directed the appellant to show the relevant communication to Ms Murphy, who represented Ms Chavez and herself at the hearing. Ms Murphy indicated that the appellant had shown her orders made by the Tribunal shortly before the hearing at first instance and did not oppose the appellant providing to the Appeal Panel a copy of the orders which he had shown her. The appellant was directed to forward those orders to the Registry.
4. The Appeal Panel Registry received a copy of an order dated 5 December 2024. That order was in the following terms:

"1 Leave is granted to the applicant to amend the application by adding Alicia Chavez Murphy as an applicant.

2 The hearing is adjourned to a date and time to be confirmed by the registrar."

1. The appellant maintained that after he received that document he had contacted the Registry and had been informed by the named member of the registry staff that the hearing had been adjourned. However, as noted above, he did not put before the Appeal Panel any evidence, beyond his bare assertion from the bar table, that he had made such a telephone call or received that information.
2. Although the order may be thought to have been potentially misleading, the respondents, who would also have received that order, nevertheless attended the hearing.
3. We note a feature of the orders of 5 December 2024 and 10 December 2024 which is difficult to understand. The order of 5 December explicitly granted leave to amend the application to join Ms Murphy as an applicant. Yet on 10 December 2024, the Tribunal again ordered that Alicia Murphy be joined as the second applicant at the request of the first applicant Paula Chavez. The Tribunal's reasons included the following paragraph:

"13 There were matters that need to be noted in relation to both parties. First, the applicant lodged a miscellaneous application which sought to add Alicia Murray as an applicant. An order needs to be made to grant that request. It is noted that the tenancy agreement named two landlords but only one was named as a respondent by their real estate agent: Tony, not Antonio. However, no application was made by either party to address that aspect of these proceedings. Nor was there any request to add the third person named as a tenant, namely Rose Murphy."

1. It would appear that the orders of 5 December 2024 had not been placed on the file, at least by 10 December 2024.
2. If the orders of 5 December 2024 had been placed on the file, the Tribunal may have considered it appropriate to enquire about the landlord's position and the reason for his non-attendance. However, we do not consider that the possibility that the Tribunal might have made further enquiries if it had seen the orders made on 5 December 2024, is sufficient to establish that the appellant was denied procedural fairness.
3. For the appellant to establish that he was denied the opportunity to attend the hearing he would need to adduce evidence that he was reasonably misled, either by the orders of 5 December 2024 or by information provided by the Registry, to believe that the hearing on 10 December 2024, of which he had received notice, had been adjourned.
4. In Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 the Appeal Panel stated, at [5]:

"5 It is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. Where notice of a hearing has been given, it will be necessary for an appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing ..."

1. The Appeal Panel in that decision also referred to Waters v Waghorn [2016] NSWCATAP 247, where the Appeal Panel stated, at [27] and [31]-[34]:

"[27] The Tribunal has a duty to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence.

...

[31] The Appeal Panel accepts that where the question of law is whether or not there has been a denial of procedural fairness, it may be appropriate to look at material that was not before the original decision maker: this may be the only way to prove the breach. This is for the reason that whether there has been a denial of procedural fairness depends on all the circumstances: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. There are a myriad of cases concerning appeals on the grounds of a breach of procedural fairness that suggest as much. For instance, in ; at , [13] and [26], the Full Federal Court received evidence to establish the breach of procedural fairness, namely that the applicant received the hearing notice two days after the hearing date and had to seek help to read the letter due to his illiteracy. In at 129, a single Judge of the Federal Court received evidence from the Post Office to establish that the applicant had not received an adjournment notice in the mail.

1. The appellant did not lead evidence to establish that he had been misled. In the absence of evidence, we cannot find that the appellant was unfairly denied the opportunity to attend the hearing.
2. The appellant's allegation that he was denied procedural fairness is rejected. This ground of appeal must fail.
3. It is convenient to defer consideration of the second ground of appeal identified above, that is whether the Tribunal failed to deal with a substantial, clearly articulated argument, until we have addressed the appellant's challenge to the Tribunal's findings in respect of the issues it did consider.

1. As we have noted above, the basis upon which the appellant submitted that the decision was not fair and equitable relied upon the same allegations as the ground of appeal. For the reasons outlined above for our conclusion that the appellant has not established that he was denied procedural fairness, we also refuse leave to appeal on the ground that the decision was not fair and equitable.
2. The appellant submitted that the Tribunal's decisions regarding cleaning, fumigation and rent were against the weight of evidence and that the Tribunal had failed to deal with other claims raised in the appellant's evidence.
3. The appellant provided to the Appeal Panel a bundle of documents which we understand was the material filed by the appellant in preparation for the hearing at first instance. The Tribunal stated that it had had regard to that material in reaching its conclusions.
4. The appellant did not provide further written submissions in support of his appeal, beyond that which he had set out in the Notice of Appeal.
5. The respondents filed a bundle of documents which also apparently included the material the respondents had provided to the Tribunal at first instance. The respondents provided detailed submissions in their Reply to Appeal. The respondents repeated those submissions in their bundle of documents, but did not file any further written submissions.
6. We note that the onus of establishing an entitlement to any part of the bond lay upon the appellant: Tang v Zhao [2020] NSWSC 243, at [22]-[23].
7. The obligations of the tenants at the termination of a tenancy are set out in s 51(3) of the Residential Tenancies Act 2010 (NSW) (RTA). Section 51 relevantly provides:

51 Use of premises by tenant

...

(3) On giving vacant possession of the residential premises, the tenant must do the following -

(a) remove all the tenant's goods from the residential premises,

(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

...

(5) This section is a term of every residential tenancy agreement.

1. We will deal in turn with the various claims to the bond raised by the appellant.

1. In respect of the appellant's claim for cleaning costs, the Tribunal allowed only the amount of the quotation obtained by the tenants for end of tenancy cleaning. The tenants did not proceed with that quotation because the appellant's agent asked them to cancel.
2. The documents before the Tribunal included an email which included an acknowledgement by the appellant's agent that the appellant had agreed to accept payment of $475 (said to be the amount of the quote obtained by the tenants) and not require the tenants to arrange cleaning.
3. The amount of the quote obtained by the tenants was in fact $470, which was the amount awarded by the Tribunal. We do not consider that the discrepancy between the amount of the quote and the amount referred to in the appellant's agent's email could give rise to a substantial miscarriage of justice. The conclusion of the Tribunal that the appellant was not entitled to demand more than $470 for cleaning cannot be said to be against the weight of evidence.

1. The Tribunal determined that there was insufficient evidence to justify the imposition of the cost of fumigation on the tenants. The only evidence identified by the Tribunal was an invoice for pest treatment and the appellant's assertion in his documents that:

"The property was infested, possibly due to bird droppings throughout the property from the tenant's pet".

1. At the hearing before the Appeal Panel, the appellant pointed to a number of photographs (on pp 86 to 87 of his bundle) showing dirt or dust on a wooden floor and a further photograph (p 121 of his bundle) showing damage to a wooden floor. The appellant maintained that the dirt or dust visible in the photographs was bird droppings and that the damage to the floor visible in the further photograph was evidence of damage from bird droppings.
2. The appellant did not identify any other evidence in the documents before the Appeal Panel to support his allegation of pest infestation.
3. The appellant's documents did not specify the nature of the "infestation", nor did the appellant point to any photographic or other evidence to establish the existence of any pest infestation.
4. The photographs said to show bird droppings do not obviously do so. At best it might be concluded that the photographs show bird seed and feathers. The appellant accepted that the tenancy agreement permitted the tenants to keep birds in the premises.
5. Even if the photographs did establish that the tenants had left the premises with bird droppings on the floor, that would not establish the existence of an infestation requiring pest treatment.
6. The conclusion that the tenants were not liable for the fumigation cost was not against the weight of evidence.

1. The appellant maintained that the tenants had given notice on 12 July 2024 that they intended to vacate the premises and had only paid rent to 26 July 2024, which was seven days less than the 21 days notice required by s 97 of the RTA.
2. The Tribunal observed that the appellant's agent had sent to the tenants an email on 15 July 2024 which said:

"Normally 21 days notice is required for vacating the property. However, I have spoken to the landlord and he is happy for you to vacate without giving the required notice."

1. The Tribunal concluded that the appellant had waived the 21 day notice requirement.
2. The communication from the appellant's agent was unambiguous. The appellant subsequently sought to suggest that the tenants had failed to notify the agent of the precise date they were moving out. Although the agent did ask the tenants to confirm the day they were moving out, there was no suggestion that the appellant's agreement to the tenants leaving without giving the required notice was conditional upon the tenants providing a response to that request.
3. The Tribunal's conclusion that the tenants were not liable for further payment of rent was not against the weight of evidence.

Other claims raised in the appellant's documents but not dealt with by the Tribunal

1. As noted above, the appellant submitted that the Tribunal had failed to deal with other claims outlined in the documentation he had submitted to the Tribunal. In particular, in oral submissions to the Appeal Panel the appellant relied upon claims in respect of a damaged kitchen cabinet, a damaged blind, the callout fee for a cancelled photography session, the fees charged by the appellant's agent for attendance at the Tribunal, and dents and scratches in the polished wooden floor.
2. These items were identified in the appellant's documents submitted to the Tribunal at first instance as "Additional costs not included in the initial claim". In respect of those additional costs, the appellant's documents stated:

"The landlord is primarily pursuing the initial claim of $2,142.25, which covers cleaning, the garage remote, keys, fumigation, light replacements, and outstanding rent. Further claims amounting to $5,851.25 are secondary but may be pursued in full if necessary."

1. The Tribunal did not consider the additional costs. The Tribunal referred to the statements by the appellant that the total amount claimed was $2,142.25 and that there were "additional costs not included in the initial claim" and concluded that those statements indicated that the appellant's claims were confined to the seven matters which it had considered.
2. As we have noted above, whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts, is a question of law.
3. We do not consider that the appellant raised a substantial, clearly articulated argument in respect of the additional costs. The appellant's document was ambiguous as to whether the appellant was claiming the additional costs against the bond. Nor do we consider that the appellant's case regarding the additional costs can be said to be based on established facts. To the extent that the appellant raised a question of law in respect of the Tribunal's failure to consider the additional costs, that ground of appeal must be rejected.
4. It remains to consider whether the appellant should have leave to appeal in respect of the additional costs. Thus, the questions remain whether the Tribunal's conclusion that the appellant's claim was limited, and its failure to allow the appellant compensation in respect of the additional costs, were against the weight of evidence and whether the appellant thereby suffered a substantial miscarriage of justice.
5. The appellant's bundle of evidence included both an incoming condition report and an outgoing condition report, however neither was signed by or on behalf of the tenants. Accordingly, those reports do not have the evidentiary force, that is the rebuttable presumption of accuracy, arising from s 30 of the RTA.
6. Nevertheless, as the Appeal Panel held in Hall v Hawkins [2015] NSWCATAP 197 at [63]:

"[Section] 30(1) establishes only a rebuttable evidentiary presumption that certain information is correct. This follows from the inclusion of the qualifying words "in the absence of evidence to the contrary" in the subsection. Section 30(1) does not render a condition report completed by only one party and not signed by the other party inadmissible, or unable to be relied upon, to establish the condition of the premises at the relevant time. In so far as a party uses a form similar to a condition report to record that party's observations as to the state of the premises at the relevant time, it can be relied upon and the Tribunal should treat it as it would any other record of observations by a witness."

1. The incoming condition report and the outgoing condition report include photographs showing the condition of the premises at the relevant time. The photographs attached to the incoming condition report are date-stamped 21 January 2021. The respondents did not seek to suggest they were not reflective of the condition of the premises at the commencement of the tenancy.
2. The photographs attached to the outgoing condition report were not date-stamped. The respondents asserted in their Reply to Appeal that the appellant had:

"Entered the apartment without permission during the lease period to leave his 'gear' before the Respondents vacated"

and that the appellant had undertaken refurbishment of the premises immediately after the tenants moved out.

1. However, the evidence of refurbishment, which consisted of photographs apparently extracted from subsequent advertising of the property, was limited to the bathroom. The respondents did not suggest that the photographs of the kitchen cupboards and the timber flooring attached to the outgoing condition report do not reflect the condition of those items at the end of the tenancy.

Replacement of blind and photography cancellation fees

1. In respect of the claims for replacement of a blind and the photography cancellation fees, the appellant included in his bundle of documents filed in advance of the initial hearing no evidence of any damage to the blind or of payment of any cancellation fee in respect of a booking for photography. Accordingly, it could not be said that the Tribunal's failure to award compensation in respect of those matters was against the weight of evidence.

1. The fees paid to the agent for attendance at the Tribunal constitute costs of the proceedings and are not recoverable as compensation for breach of the tenancy agreement: The Owners - Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326, at [95].

1. In respect of the cupboard door, the appellant's documents provided to the Tribunal asserted that there were "burn marks and other damage to the kitchen cabinets". In submissions to the Appeal Panel the appellant referred to an invoice from Ballout Kitchens for "Replace damaged doors" in the amount of $550 and a photograph, attached to the outgoing condition report and said to have been taken at the end of the tenancy, which showed substantial deterioration of the cupboard door adjacent to the stove, when compared to a photograph attached to the incoming condition report, which was date-stamped 21 January 2021.
2. The obligation of the tenants under s 51(3)(b) of the RTA was to "leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted," as at the commencement of the tenancy.
3. In this regard we note that the invoice relied upon by the appellant in respect of the cupboard door refers to the replacement of "doors", ie more than one door, and provides no breakdown of the cost of replacing the one door in respect of which the appellant pointed to evidence of deterioration. Had the Tribunal considered the appellant's claim in respect of the cupboard door, it might have made some assessment of the cost of the one door which the evidence showed had deteriorated during the tenancy. However, it is not sufficient to justify leave to appeal that the Appeal Panel conclude that the Tribunal might have reached a different decision. As noted above, to grant leave we must find that the appellant may have suffered a substantial miscarriage of justice.
4. Even if we concluded that the photographs establish damage to the cupboard door beyond fair wear and tear, we could not conclude that the failure to award compensation in respect of the cost of replacement of that door was against the weight of evidence because there was no evidence sufficient to identify the cost of replacement of that one door.

1. The appellant submitted that the evidence established that the polished timber floors in the entrance hall and the living room had been substantially damaged by the tenants and required repair. The appellant relied upon a quotation from SA Professional Floors and Renovations (SA Professional) for "sanding and polishing living room and hallway with minimum charge" in the amount of $2,400.20 inclusive of GST.
2. The appellant's submission document stated that:

"The floor had multiple dents and scratches... particularly where the birdcage was placed. Scraping the bird droppings left further dents."

1. However, the evidence included in the appellant's bundle did not establish that any damage to the floors which may have occurred during the tenancy was more than "fair wear and tear".
2. The incoming condition report stated in respect of the polished timber flooring in the living room and hallway:
   • entrance/Hall: "clean visible wear"
   • lounge room: "clean flooring is wearing in some areas visible scratches"
3. The attached photographs included general views of the polished floor in each of those rooms but no close-up photograph of any of the "visible wear" or "visible scratches". It is possible to discern in some of those photographs (pp 144-146 and 155-157) marks which appear to be scuff marks, scratches and pitting.
4. The outgoing condition report stated in respect of the polished timber flooring in those rooms:
   • entrance/Hall: "not cleaned visible wear"
   • lounge room: "not clean, bird droppings stuck on flooring, visible scratches"
5. The photographs attached to the outgoing condition report included close-up photographs which showed areas where the floor varnish appeared to be scuffed off, areas with substantial pitting in the floor varnish, and substantial scratches in the floorboards. The photographs included with the outgoing condition report did not include general views of the floors taken from the same perspectives as those included in the incoming condition report.
6. In the absence of comparable "before and after" photographs, ie photographs taken at the beginning and at the end of the tenancy from the same position showing the same areas of floor from the same perspective, it is not possible to conclude on the basis of the evidence presented by the appellant that the extent of damage to the floors recorded in the photographs attached to the outgoing condition report constituted more than fair wear and tear over the three and a half years that the tenants occupied the property.
7. In the absence of close-up photographs of the damage to the floors referred to in the incoming condition report, which would enable a comparison between the extent of scratching, scuffing and pitting at the commencement of the tenancy and that recorded in the close-up photographs taken at the end of the tenancy, it is not possible to conclude that the damage recorded at the end of the tenancy was greater (or substantially greater) than the damage at the commencement of the tenancy recorded in the incoming condition report.

(1) Leave to appeal refused.

(2) Appeal 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.