O’Brien v Women’s Housing Company Limited

AL Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195

Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111

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

Attia v Health Care Complaints Commission [2017] NSWSC 1066

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 22

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26

Azzopardi v Tasman QEB (1985) 4 NSWLR 139

BHP Billiton Ltd v Dunning [2013] NSWCA 421

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

Boensch Trust v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Boreland v Brewis [2024] NSWCATAP 140

BP v State of New South Wales [2019] NSWCA 223

Bush v Menzies [2024] NSWCATCD 43

Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168

Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Chatterjee v Pandya [2024] NSWCATAP 85

Collins v Urban [2014] NSWCATAP 17

Corcoran v Far [2019] NSWSC 1284

Donohoe v Albulario [2025] NSWSC 9

Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94

Edwards v State of New South Wales [2022] NSWCA 187

El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329

Finn v Finato [2004] NSWCTTT 179

Garofali v Moshkovich [2021] NSWCATAP 242

H2O Exchange Pty Ltd v Innovation and Science Australia [2021] FCA 11

Halil v NSW Land and Housing Corporation [2023] NSWCATAP 72

Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646

Hampel v South Australian Housing Trust [2007] SADC 64

Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138

Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109

Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302.

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Jeray v Blue Mountains City Council [2024] NSWCATAP 66

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

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

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Kramer v Stone [2023] NSWCA 270 at [259]

Lewis and Smyth v Rejko Pty Ltd [2021] NSWCATAP 186

Lieschke v Lieschke [2023] NSWCA 241

Makowska v St George Community Housing Ltd [2021] NSWSC 287

McDonald v NSW Land and Housing Corporation [2015] NSWCATAP 163

McEvoy v Wagglens Pty Ltd [2021] NSWCA 104

McLeish v FT Eastment & Sons Pty Ltd (1970) 91 WN (NSW) 268

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Muraurer v Andresson [2016] NSWCATAP 15

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

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

NSW Land and Housing Corporation v Khalkhali [2022] NSWCATAP 333.

NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164

Pholi v Wearne [2014] NSWCATAP 78

Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41

Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

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

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Ros v Commissioner of Police [2020] NSWCATAP 243

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

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

Shandil v Tahany Pty Ltd [2024] NSWCATAP 82

Sheilds v Deliopoulos [2016] VSC 500

Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301; (2015) 321 ALR 356

State of NSW v JR; State of NSW v Dickens; State of NSW v Jensen [2024] NSWCA 308

Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289

Stoltenberg v Bolton; Loder v Same (2020) 380 ALR 145; [2020] NSWCA 45

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners Strata Plan No 64807 [2023] NSWCA 188

Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246

Tanner v NSW Land and Housing Corporation [2023] NSWCATCD 24

Taylor v Wise [2011] SADC 6

The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273

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

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Wassef v Panagiotopoulos [2019] NSWCATAP 101

Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25

Wells Group Pty Ltd v Betts [2025] NSWCATAP 70

Westwell v Kitson [2018] NSWCATAP 121

YHY v YHZ [2024] NSWCATAP 117

Yi v Park [2024] NSWCA 187,

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

Yuen v Thom [2016] NSWCATAP 243

1. This is an appeal from a decision of the Tribunal dated 29 August 2024 in a dispute under the Residential Tenancies Act 2010 (NSW) (RT Act). The tenancy is a social housing tenancy.
2. In this decision, any reference to 'the tenant' is a reference to the appellant and any reference to 'the landlord' is a reference to the respondent.
3. In this decision there is reference to conditions and disabilities of the tenant. It is necessary to refer to this evidence to deal with the appeal issues raised by the tenant.
4. A significant element of the dispute between the parties involved the state of repair of the residential premises, in the context of the disabilities and medical conditions of the tenant.
5. The tenant has a number of physical and psychological conditions. She uses a wheelchair. The tenant is a recipient of assistance under the NDIS scheme. The tenant has also provided medical evidence to the landlord regarding conditions involving asthma, fatigue, and sensitivity to chemicals.
6. The decision under appeal made certain money orders and repair orders in favour of the tenant but dismissed other parts of the tenant's claim. The tenant appeals from the orders made and criticises the reasons. The grounds of appeal relied upon are copious. They overlap and are repetitive.
7. The dispute between the parties involves a residential tenancy agreement that commenced in September 2023. The tenant had previously been a tenant of the landlord at a different property in a different suburb of Sydney.

1. On 9 November 2023, the tenant filed proceedings in the Tribunal seeking orders for (i) payment of money in the amount of $10,000 under s 187(1)(c) and (d) of the RT Act; (b) an order directing the landlord to comply with the RT Act and its Regulations under s 187(1)(h) of the RT Act; (c) an order reducing the rent payable where the premises are unusable or uninhabitable under s 45 of the RT Act; (d) an order for repayment of rent or other payments made by the tenant under s 47 of the RT Act; and (e) an order that personal information about a person in a residential database be wholly or partially removed, amended, or not listed under s 217 of the RT Act.
2. When the proceedings were commenced, the tenant was self-represented.
3. The Tribunal proceedings had a lengthy procedural history, involving several procedural directions hearings. There were repeated issues in the proceedings with parties not complying with procedural directions for the filing and serving of documentary evidence. In May 2024, there was an unsuccessful adjournment application by the tenant.
4. In July 2024, the tenant served several separate bundles of documents and submissions. Included in those documents was a 32-page document entitled "Applicants Statement of Issues". That document contains an extensive outline of submissions, including legal arguments. The document states it was prepared by the tenant's "support worker." The font and style of that document is very similar to the font and style of submissions filed since the tenant has been legally represented.
5. The tenant's documentary materials included the following expert reports:

(a) Mr Phillip Turner (occupational hygienist) of Workplace Environmental Consultants Pty Ltd dated 16 June 2024.

(b) Mr Dan Drexler (building consultant) of NSW Master Builder Inspections dated 14 July 2024.

1. The proceedings were set down for hearing on 22 August 2024. Originally, the hearing was listed to commence at 9.15 am. On 16 August 2024, a revised hearing notice was issued with the commencement time being 10.30 am.
2. For part of the proceedings, the tenant was represented by a disability support worker, Mr Patton, then a different disability support worker, Mr Adams.
3. During the Tribunal proceedings, both parties were granted leave to be legally represented.
4. The tenant was represented at the Tribunal hearing by Mr Hallmann, Solicitor, of The ME Legal Group Pty Ltd (based in Queensland) and the landlord represented by Ms Harrington, Solicitor, of Gilchrist Connell.
5. Mr Hallmann had written to the Tribunal on 16 August 2024 stating that he was representing the tenant. He also wrote to the Tribunal complaining that the hearing was listed at 9.15 am and based on previous correspondence from a Registrar of the Tribunal, the hearing should not commence earlier than the afternoon due to the tenant's disabilities.
6. On or about 16 August 2024, the landlord sent to the Tribunal an evidentiary statement of Ms Robinson (housing services manager of the landlord) and a written outline of submissions prepared by the landlord's Solicitors.
7. On 20 August 2024, Mr Hallmann was granted leave to legally represent the tenant under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
8. On about 21 August 2024, the tenant sent to the Tribunal an affidavit dated 21 August 2024. That document included reference to a previous statutory declaration of the tenant dated 21 August 2024, and the tenant having filed "ten (10) evidence Bundles".
9. The hearing occurred and concluded on 22 August 2024. The tenant has provided a transcript of the hearing in the tenant's documents filed and served in the appeal.
10. The Tribunal reserved its decision and subsequently published to the parties its decision and reasons.

Decision and Reasons of the Tribunal Under Appeal

1. The Tribunal made, in substance, the following orders:

(1) Landlord to pay the tenant $4,900.

(2) Landlord to perform repairs of the premises by 13 September 2024. The repairs involved certain repairs to the bathroom; certain repairs to the kitchen; treating and cleaning internal aspects of the premises for mould (in particular, the kitchen and bathroom); replacement of the outside tap and/or insulation of a splashback to protect the building; and repair of broken fence panels.

(3) The tenant was to provide access to the premises so that the repair works could be performed on 2 specified days; and the tenant was not to "obstruct and/or impose any conditions on the landlord or their contractor in carrying out these orders".

(4) All other claims by the tenant were dismissed.

1. The reasons of the Tribunal commence by setting out the history of the tenancy. The tenant had been a tenant of the landlord since 2018, but in September 2023 the tenant had moved to a new property of the landlord. The parties entered into a residential tenancy agreement for the premises the subject of this dispute on 20 September 2023.
2. The Tribunal identified that the tenant had filed a 'Statement of Issues' document that identified the orders sought. Those orders were as follows:

(1) Compensation and/or damages under s 187 of the RT Act in respect of:

(a) False representations of the landlord.

(b) Loss of quiet enjoyment.

(c) Loss of amenity.

(2) The amount sought was $15,000 (the monetary jurisdiction limit of the Tribunal under Reg. 40 of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation). The basis of the loss involved the actions of the landlord in respect of representations made about the condition of the residential premises; mould contamination; security of the premises; "unapproved visits;" and "accommodation costs."

(3) A rent reduction due to the landlord's withdrawal of services or facilities (s 44(1)(b) of the RT Act).

(4) Repairs to the premises; with the tenant to be given notice of any works.

1. The landlord opposed all the orders sought by the tenant.
2. The Tribunal noted that procedural directions had been made for the filing and serving of documentary evidence by the parties. Both parties had filed and served documents. However, the tenant's "final documents" were filed and served on the day of the hearing. The Tribunal allowed those documents to be considered as part of the evidence and explained why it was appropriate to do so. The Tribunal noted that both parties stated they were ready to proceed. The tenant's late documents did not cause the landlord to seek an adjournment.
3. The reasons of the Tribunal state the tenant relied upon a "voluminous amount of material in various bundles submitted at various times, most of which was not referred to at the Tribunal hearing." The Tribunal stated that much of the tenant's documentary material was repetitive, and the relevance of some of the material was unclear.
4. The Tribunal identified 6 primary issues, and dealt with these issues under subheadings, with a final subheading "other issues".

1. The Tribunal set out the evidence and submissions of the parties.
2. The tenant submitted that she had several disabilities pertaining to chemical sensitivities; a learning disability; asthma; post-traumatic stress disorder; and volatile organic compound sensitivity. The tenant's position was that the landlord was aware of her disabilities from 2018; and knew, or should reasonably have known, of her disabilities when she was moved to the new premises in September 2023.
3. According to the tenant, she was informed about the new premises in July 2023. The landlord performed renovations at the property that included painting and replacement of carpet flooring with vinyl. The tenant stated she had received an email from the landlord dated 6 September 2023 that the premises met the tenant's "criteria" and was only going to be "held" by the landlord for a short period for the tenant to inspect and decide. According to the tenant, she arranged for a NDIS support worker to inspect the premises, who formed the view that the premises were unclean and had a strong paint smell. The tenant accepted the premises and entered into a residential tenancy agreement because her only other choice was homelessness.
4. The tenant alleged that when she moved into the premises, they were not clean. She had the premises professionally cleaned. A NDIS support worker completed the ingoing inspection report on her behalf and the tenant then completed a "more detailed supplementary report." According to the tenant the premises were not fit for habitation due to lack of cleanliness, had "unseen mould," and volatile organic compound (VOC) smells.
5. The tenant obtained an expert report from Mr Turner (occupational hygienist) dated 16 June 2024. He inspected the premises on 24 February 2024. Mr Turner gave evidence at the hearing by audio-visual link and was cross examined. According to Mr Turner there was mould in the premises, and he provided recommendations for cleaning the mould. Mr Turner also referred to smelling odour from the flooring system but could not smell any odour from the paint in the premises. Mr Turner did not believe yellow stains from residual tobacco smoke and/or residual kitchen grease would emit any significant odour.
6. The Tribunal found at paragraph [15]:

"Overall, the Tribunal could not be satisfied that there was anything in Mr Turner's report or evidence that would lead to a finding that either the whole of the premises, or any part of the premises, were either at the commencement or during the tenancy uninhabitable."

1. According to the tenant, the landlord breached s 26 of the RT Act, because the premises "did not meet all of her criteria" despite the landlord representing that it did. The tenant stated that there were areas of the property not suitable for wheelchair use; there was mould in the premises; and the works performed by the landlord prior to the tenant entering into the residential tenancy agreement (painting and flooring) was unsuitable to a person with her chemical sensitivity conditions. The tenant submitted that the landlord knew of her disabilities based on her tenancy between 2018 and September 2023 in the former premises.
2. The landlord submitted it was a social and affordable housing provider, not a disability housing provider. The landlord asserted that the reference to the property meeting the tenant's "criteria" was a general reference to the tenant's housing needs (a two-bedroom unit located in the requested geographical area with ground floor access) rather than a reference to the tenant's specific disability issues.
3. According to the landlord, the tenant's disability support worker inspected the premises; and the tenant also viewed the premises remotely by audio-visual meeting prior to her entering into the lease. Other than the premises not being sufficiently clean, for which the landlord was prepared to reimburse the tenant the cost of the professional cleaners she engaged, the landlord denied the premises were uninhabitable or that there had been any misrepresentations.
4. The landlord submitted in the alternative that if there was a breach of s 26 of the RT Act, only moderate damages in the range of $1,000-$2,000 should be awarded.
5. At paragraphs [25]-[31] of its reasons, the Tribunal referred to legal authorities regarding misleading or deceptive conduct (citing authorities that involve s 18 of the Australian Consumer Law 2010 (NSW) (ACL)). It stated the relevant test was objective. The Tribunal found at paragraph [31]:

"Based on the objective analysis of what the landlord knew about the tenant's disabilities and sensitivities, the situation that the tenant was in, and the wording of the email, the Tribunal finds that the landlord knew that the email sent to the tenant was a least misleading and deceptive because, based upon the words being used "all of your criteria", the tenant had every right to infer that the property would meet her housing needs, her specific disability issues, and VOC requirements. Clearly the property did not, and it was this misleading and deceptive statement that induced the tenant to enter into the residential tenancy agreement. The Tribunal finds that the landlord breached s 26(1) of the Act."

1. At paragraphs [32]-[36] the Tribunal considered what damages should be awarded for the landlord's breach of s 26 of the RT Act. The Tribunal awarded the tenant the sum of $2,000. The Tribunal found at paragraphs [35]-[36]:

In this matter, the Tribunal finds that the award of compensation/damages should be at the lower end of the scale. In reaching that conclusion, the Tribunal accepts that landlord should not have offered and induced the tenant to take this property. However, in saying that the Tribunal accepts what the landlord has submitted; that being at the very least the tenant and her disability worker had the opportunity to inspect the premises before the tenant signed the tenancy agreement, and if the property was not suitable for her because of her conditions regarding the tenant's VOC and sensitivities were readily identifiable-the paint smell and new flooring which could not be mitigated, then they should not have taken the property. The tenant's risk of homelessness at that time was not of the landlord's making, and irrespective of that fact, the tenant and her disability worker ultimately had the final say on whether the tenant would take the property, or not, which they decided to take.

Additionally, the Tribunal has taken into account that the tenant has continued with the tenancy well past the end of the 6 months fixed term and has not sought to end the tenancy and vacate the property at any stage. The Tribunal considers that this supports a conclusion that the tenant can live in the property and still manage her VOC and conditions at the premises as best as possible which has befitted her because at the time when she was having to vacate her previous rental property with the landlord there was a significant possibility that she could have become homeless. If this is not the case, then the tenant has failed to mitigate the situation by entering into the tenancy agreement but then failing to end the tenancy agreement as she could clearly have done so. Based upon all those considerations, the Tribunal finds that the sum of $2,000 is fair and reasonable compensation/damages for the breach of s 26(1) of the Act by the landlord and makes an order accordingly."

Issue 2 - Premises Fit for Habitation and Kept in a Reasonable State of Repair

1. This issue is considered at paragraphs [38]-[53] of the reasons.
2. The Tribunal identified that there are two different obligations on the landlord. Under s 52(1) of the RT Act, a landlord must provide residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. Under s 63(1) of the RT Act, a landlord must keep and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for, and prospective life of the premises. In circumstances where the tenant is seeking an order for repairs, the landlord's obligation is qualified by s 65 of the RT Act.
3. The tenant submitted that throughout the tenancy she had requested repairs and referred to "list of issues" in the tenant's Statement of Issues document.
4. In respect of breach of s 52 of the RT Act, the Tribunal found (at paragraph [40]) that, based on the landlord's concession the premises were not in a reasonable state of cleanliness at the commencement of the tenancy, the landlord was in breach. At paragraph [41], the Tribunal was critical of the evidence provided by the tenant quantifying the cost of cleaning and awarded the tenant $300 as a "fair and reasonable sum" for the cost of cleaning the premises at the commencement of the tenancy.
5. At paragraphs [42]-[45] the Tribunal dealt with the tenant's assertion that the premises were not fit for habitation at the commencement of the tenancy because, in addition to being unclean, the premises "contained unseen mould"; contained "serious VOC issues for the tenant"; and "did not comply with Australian Standards applicable to disability housing".
6. The Tribunal was not satisfied that, assessed objectively, the premises were not fit for habitation at the commencement of the tenancy. The Tribunal regarded the evidence of Mr Turner as indicative of "additional maintenance was required by the owner and cleaning by the tenant" but not that the premises was unfit for habitation at the commencement of the tenancy. The Tribunal stated (at paragraph [44]):

"The Tribunal is satisfied that any assessment as to whether the premises were when the tenant moved in or are now fit for habitation is based on an objective test in respect of the premises. The Act clearly identifies the assessment of the condition of the premises as the relevant factors, not any personal factors. The tenant has identified nothing in the legislation that would lead the Tribunal to consider that the tenant's personal circumstances, as in this case, her sensitivities and VOC issues, and her disability requirements are the test for whether the premises were/are fit for habitation..."

1. The Tribunal dismissed the tenant's claim that the premises were not fit for habitation, other than in respect of the additional cleaning performed by the tenant.
2. At paragraphs [46]-[50], the Tribunal considered whether the landlord had breached the landlord's obligations in respect of repairs to the premises (i.e. consideration of ss 63 and 65 of the RT Act).
3. The Tribunal identified that there had been disputes between the parties regarding access to the premises so that repairs could be performed. The landlord had access to the premises on "some occasions," but difficulties had increased, according to the landlord, due to the tenant's "demands" regarding contractors.
4. On 23 May 2024, the tenant had emailed the landlord with a list of 14 required conditions before the tenant would allow access. Such conditions involved nominating the persons who would attend; everyone wearing N95/P2 masks for the duration of attendance; all persons performing a rapid antigen test on entry; all materials "must comply with VOC allergy requirements"; a list of all materials and tools intended to be used be supplied to the tenant; any "deviation" from the conditions meant work would stop; and the tenant could deny or cancel access on late notice.
5. The Tribunal found (at paragraph [47]) that the tenant's conditions for repairs to the premises were unreasonable and there was no legal basis for imposing them upon the landlord under the RT Act. The tenant had not allowed the landlord reasonable access, and the landlord had attempted to engage with the tenant and access the premises.
6. At paragraph [46], the Tribunal noted that the landlord conceded that some repair works were outstanding, and the landlord was prepared to perform the works on the basis the Tribunal made an access order.
7. At paragraph [49], the Tribunal found that "there have been some repairs at the premises which the landlord should have completed before the tenancy commenced and some other things that have arisen since". The Tribunal referred to a damaged fence; the stove, oven, and rangehood; and "areas involving mould." The Tribunal stated that "CDS group" had recommended works to the premises on 4 January 2024 which had not been undertaken; and Mr Turner had identified "mould issues and repairs" which remained outstanding.
8. The Tribunal found (at paragraph [49]) that the premises were "not provided as speciality disability housing to the tenant and thereby the landlord is not required to carry out any work in respect of bringing the property up to disability compliance standards". The Tribunal also found that there were some breaches of the landlord's obligations under s 63 of the RT Act, but that the actions of the tenant by imposing unreasonable restrictions on access had allowed "issues to drag on and not be mitigated".
9. At paragraph [50], the Tribunal found that the landlord was in breach of s 63 of the RT Act in respect of some items, and a work order should be made. The Tribunal was also satisfied that the landlord should pay the tenant "some reasonable compensation and/or a rent reduction" in respect of the landlord's breach of s 63 of the RT Act.
10. At paragraphs [51]-[53] the Tribunal considered what was an appropriate amount. The Tribunal rejected the tenant's submissions that a rent reduction was appropriate because the tenant had caused and/or contributed to the loss of amenity due to the tenant's failure to give reasonable access to the landlord to conduct repairs by reason of her "unreasonable demands."
11. At paragraph [52], the Tribunal found that a lump sum amount of compensation was appropriate for the loss of amenity caused by the landlord's breach of s 63 of the RT Act, considering the actions of the tenant imposing unreasonable conditions on the landlord in respect of access. The Tribunal awarded the tenant $2,000.

1. The Tribunal dealt with this issue at paragraphs [55]-[56]. The Tribunal accepted there was mould in the premises, noting that this evidence was contained in both the landlord's expert report (CDS Group) and the tenant's expert report (Mr Turner). However, the mould did not make the premises uninhabitable, and could be "investigated, treated and removed through normal processes." The Tribunal stated that it had taken into account the existence of mould in the premises when calculating the compensation amount of $2,000.

1. The Tribunal considered this issue at paragraphs [58]-[65].
2. The tenant sought an order that the landlord install additional security measures, being 'Crim Safe' lockable security window and door screens. The tenant asserted that the premises were located in a high crime area, and due to her "VOC sensitivities" she often leaves windows open at night to improve ventilation.
3. The Tribunal referred to the provisions of s 70(1) of the RT Act, which provides that a landlord must provide and maintain locks or other security devices necessary to ensure the residential premises are reasonably secure; and s 191(2) of the RT Act, which identifies matters that may be taken into account to determine whether premises are reasonably secure.
4. The landlord submitted that the property had sufficient locks for windows and doors and met the "NSW Government policy." According to the landlord, it was not the owner of the property and installation of additional lockable security screens would "have to be requested in line with the Policy and require the consent of the building owner."
5. At paragraph [64], the Tribunal made findings regarding the "deficiencies" in the tenant's evidence, with insufficient information to verify the area was a "high crime area" or that she had difficulties obtaining insurance due to the insufficient security. The Tribunal also commented that it did not understand how a 'Crim Safe' screen would make any difference to "inappropriate abuse and contact from neighbours."
6. At paragraph [65], the Tribunal found that it was not satisfied that, assessed objectively, the landlord was in breach of its obligation under s 70(1) of the RT Act. However, the Tribunal commented at paragraphs [63] and [65] that the tenant could make a further request to the landlord for additional security measures that followed the landlord's "guidelines".

1. This issue is dealt with at paragraphs [67]-[69] of the reasons.
2. The tenant alleged that the landlord had engaged tradespersons to attend the premises on three occasions in December 2023 without adequate notice under s 55(2) of the RT Act and sought compensation for loss of quiet enjoyment under s 187 of the RT Act. The tenant did not ultimately press the third attendance but sought $200 for the first attendance; and $400 for the second attendance.
3. The landlord conceded that it had not given adequate notice in respect of the two attendances but submitted that $200 should be awarded for each attendance (a total of $400) rather than the $600 sought by the tenant.
4. The Tribunal found (at paragraph [69]) the landlord had breached s 55(2) of the RT Act and awarded the tenant a total of $600 for distress and inconvenience.

Issue 6 - Loss of Quiet Enjoyment/Accommodation Costs

1. This issue is dealt with at paragraphs [71]-[78] of the reasons.
2. Under s 50(2) of the RT Act, a landlord or a landlord's agent, must not interfere with or cause or permit, any interference with, the reasonable peace comfort or privacy of the tenant in using the residential premises.
3. The tenant alleged that the landlord had engaged builders to perform works on the unit block in which she resided in January 2024 without giving her adequate notice or taking measures to accommodate her sensory needs. The works occurred for approximately 2 weeks. The tenant alleged the noise, and disturbance, caused her to move out of the premises for 2 weeks. The tenant sought reimbursement of the cost of alternative accommodation in the amount of $2,076.46. Additionally, the tenant sought damages for loss of quiet enjoyment under s 187 of the RT Act in the amount of $3,000.
4. The landlord opposed the claims on the basis that the works were required; the works were performed in business hours and in compliance with local Council requirements; and the decision of the tenant to move out was unnecessary.
5. The Tribunal held (at paragraphs [75]-78]) that the landlord had a lawful reason for performing the work, and that although the landlord "could have done more" to notify the tenant, the Tribunal was not satisfied the tenant had established a breach of s 50(2) of the RT Act. The Tribunal noted that whether s 50(2) of the RT Act had been breached was assessed objectively, and none of the works involved the builder gaining access to the residence of the tenant. Although the tenant decided to move out, this was based upon her subjective perception.
6. At paragraph [78], the Tribunal dealt with the claim by the tenant that, separately to compensation for any other breach, the tenant should be awarded "at least $2,000" for loss of quiet enjoyment over 11 months. This was based upon the general conduct of the landlord causing the tenant stress, anxiety, and aggravation of disabilities. The Tribunal dismissed this claim, stating that it had considered the alleged breaches of the RT Act separately and there was no basis for making an additional, and general, finding that the actions of the landlord constituted a loss of quiet enjoyment such that the tenant should be awarded any further compensation.

1. At paragraphs [80- [85] of the decision, the Tribunal dealt with other claims by the tenant. The claims were as follows:

(1) Order under s 61 of the RT Act that the landlord give minimum written notice of access, and that any entry be after 12.00 pm; all persons entering undergo a prior infectious disease test; wear a N95 mask; and not wear any deodorants or scents.

(2) Economic loss of $950 for the cost of electricity in respect of "using appliances more due to mould". One of the appliances identified was the washing machine.

(3) The cost of the report of Mr Turner (occupational hygienist) in the amount of $1,800.

1. The Tribunal noted that the tenant had also claimed $4,791 for the cost of air purifiers, but this claim was withdrawn (and accordingly, dismissed under s 55(1)(a) of the NCAT Act).
2. In respect of the "other issues," the Tribunal found:

(1) Section 61(1) of the RT Act "primarily" deals with access in respect of sale of premises, which was not the applicable circumstances. In any event, the conditions sought by the tenant were unreasonable and unworkable. Further, at the hearing, the parties had agreed to dates in September 2024 for access, and it was important that the tenant provide access so that works could be performed. By reason of past access disputes, the Tribunal determined it appropriate to make an ancillary order that, if the tenant did not provide access on the dates specified, the landlord may engage a locksmith to gain access.

(2) The tenant had not provided evidence sufficient to establish that any breach of s 63 of the RT Act by the landlord had caused economic loss in respect of electrical usage beyond normal usage.

(3) The cost of the expert report of Mr Turner could only be recovered as a disbursement under s 60 of the NCAT Act, and there were no sufficient 'special circumstances' under s 60(2) of the NCAT Act to cause the Tribunal to depart from the usual principle under s 60(1) of the NCAT Act that each party bears its own costs.

1. On 10 September 2024, the tenant filed a Notice of Appeal and an Application for a Stay.
2. The appeal was filed with the requisite time under Reg. 25(4)(b) of the NCAT Act.
3. The Notice of Appeal contained an index and annexures comprising of 65 pages. Five grounds of appeal were identified, but those grounds were split into multiple sub-grounds. There was a separate section of the document headed "other matters of importance." In respect of "orders sought," 27 orders were identified.

1. On 4 October 2024, the Appeal Panel made a consent order staying the operation of Orders 2 to 5 of the Tribunal until further order or finalisation of the appeal, whichever is the earlier in time.

1. On 4 October 2024, the Appeal Panel also made procedural directions. The appeal was listed for hearing on 19 December 2024. There were also procedural directions made, including allowing amended grounds of appeal to be filed and served; a timetable for parties to file and serve their documents and submissions in the appeal (including any transcript or sound recording of the hearing relied upon).
2. On 20 November 2024, the Appeal Panel granted an extension to the tenant to file and serve Amended Grounds of Appeal; and the documents and submissions sought to be relied upon. The timetable was also extended in respect of the landlord.
3. Both parties have been granted leave to be legally represented in the appeal.

Amended Grounds of Appeal and Documents of the Tenant to 19 December 2024

1. On 18 November 2024, the tenant filed "Appeal Bundle 1" comprising 55 pages.
2. On 6 December 2024, the tenant filed and served "Amended Grounds of Dispute" as part of a bundle of documents comprising 212 pages.
3. On 6 December 2024, the tenant also filed "Appeal Bundle 3", which comprised 314 pages.
4. On 10 December 2024 (under covering letter dated 27 November 2024) the tenant filed 3 USB drives containing (in electronic form) "Bundles 1-10; Appeal Bundles 1-2"; transcript of hearing on 22 August 2024; and a written copy of the transcript (the transcript was 157 pages).
5. On 17 December 2024, the tenant filed a document "response to reply to amended grounds of appeal" comprising 112 pages. The date on the coversheet of the "response to reply to amended grounds of appeal" is dated 17 November 2024.
6. Amended Grounds of Appeal are set out again in a document titled "Amended Grounds on Appeal" dated 16 December 2024.
7. That document is discursive and incorporates submissions into the grounds of appeal. Including submissions and annexures, it comprises 212 pages.
8. Sixteen grounds of appeal are identified. They are summarised as follows:

(1) Ground 1-Denial of procedural fairness.

(2) Ground 2-Failure to find that the landlord's conduct was unconscionable.

(3) Ground 3-Error in construing s 52 of the RT Act by failing to consider the personal circumstances and disabilities of the tenant when assessing whether the premises were fit for habitation.

(4) Ground 4-Error of fact in finding that the premises were not uninhabitable.

(5) Ground 5-Error in finding that the landlord did not breach the tenant's quiet enjoyment when its builder performed works to the unit complex.

(6) Ground 6-Error in finding that the premises were reasonably secure.

(7) Ground 7-Error in finding that there were no sufficient "special circumstances" to award the tenant the cost of engaging an expert report.

(8) Ground 8-Error in finding the tenant had failed to provide sufficient evidence of additional electricity usage due to mould.

(9) Ground 9-Error in finding the premises were not provided as disability housing and the landlord was not required to repair or modify the premises to accommodate the tenant's disabilities.

(10) Ground 10-Error in finding that there should be no rent reduction due to the tenant's conditions in allowing access.

(11) Ground 11-Error in finding that the tenant's conduct in respect of demands on how access would occur constituted a failure to mitigate.

(12) Ground 12-Error in the Tribunal considering the tenant had remained in the property past the 6-month fixed term agreement.

(13) Ground 13-Error in awarding the tenant compensation in a "global sum" for the landlord's failure to maintain and repair the premises, and breach of quiet enjoyment.

(14) Ground 14-Error in finding that the tenant withdrew the claim for damages in respect of the cost of air purifiers.

(15) Ground 15-Error in failing to make an award for "stress and anxiety".

(16) Ground 16-Error in ordering the landlord to conduct repairs without ensuring that the manner of repair did not impact the tenant's "health and safety or make the property unfit for habitation.

Landlord's Reply to Appeal and Documents to 19 December 2024

1. The landlord filed a Reply to Appeal on 24 September 2024.
2. The landlord filed submissions on 13 December 2024. The landlord's submissions comprise 30 pages.
3. The landlord's submissions identify that it had been served with the following documents in the appeal:

(1) Tenant's Appeal Bundle 1 dated 17 November 2024.

(2) Tenant's Appeal Bundle 2 dated 24 November 2024.

(3) Tenant's Appeal Bundle 3 dated 3 December 2024.

1. The landlord's submissions state that the landlord opposed evidence the tenant sought to rely upon that was not filed and served in the Tribunal proceedings. That evidence is identified as:

(1) Documents 1 and 8 in "Appeal Bundle 1".

(2) Documents identified as "Bundle 9" dated 31 July 2024. The landlord asserts that those documents were not served on the landlord in the Tribunal proceedings. The bundle contains "witness statements from the appellant and other support workers/witnesses in the form of statutory declarations."

1. The submissions of the landlord also contain further documents that were not before the Tribunal at the hearing.
2. The documents referred to are:

(1) NSW Family and Community Services Housing Pathways Independent Living Skills Assessment of Ms L. Blundell, occupational therapist, dated 30 June 2021.

(2) Statement of Ms J. Maude dated 13 December 2024. Ms Maude is the General Manager, Asset Management and Growth, of the landlord.

(3) Statement of Ms Wood, Solicitor, dated 13 December 2024. Ms Wood is the principal Solicitor of the firm with overall carriage and conduct of the proceedings on behalf of the landlord.

1. The statement of Ms Maude asserts that the landlord is not a provider of specialist disability housing, but a general social housing provider. Homes NSW is the owner of the property. The statement contains information about the likely cost of modifying the premises in the manner set out in the report of Mr Drexler.
2. The statement of Ms Wood refers to the procedural history of the Tribunal proceedings and the appeal proceedings.

1. The appeal proceedings were first listed for hearing on 19 December 2024.
2. Mr Hallmann, Solicitor, appeared for the tenant and Ms Harrington, Solicitor, appeared for the landlord.
3. There had been a failure to comply with previous procedural directions regarding the filing and serving of documents and submissions. By reason of the tenant's failure to comply with procedural directions, the landlord had made a miscellaneous orders application. On 20 November 2024, Blake SC PM made procedural directions granting both parties an extension of time. There were difficulties clearly identifying what documents and submissions the tenant was relying upon in the appeal and distinguishing between documents that were in evidence before the Tribunal and fresh evidence that was not before the Tribunal, but leave was being sought to rely upon in the appeal.
4. The landlord opposed the tenant being granted leave to rely upon documents and submissions that had not been filed and served in accordance with previous Appeal Panel directions. We were not satisfied that this was an appropriate course of action and determined it appropriate to adjourn the appeal hearing part heard.
5. We made procedural directions that relevantly included the following:

...

6. The appellant is granted leave to rely upon the Amended Grounds of Appeal and submissions attached to the Amended Grounds of Appeal comprising of 212 pages dated 6 December 2024.

7. The documents the appellant may refer to in the appeal are the documents that were filed and served on a USB key under cover of letter of the appellant's Solicitor dated 27 November 2024, and additionally the documents that were filed and served in hard copy in the appeal (the documents attached to the Notice of Appeal dated 10 September 2024; and the documents marked Appeal Bundle 3 filed on 6 December 2024).

8. The respondent is granted leave to rely upon its submissions dated 13 December 2024 and may seek leave to rely upon the statements filed with those submissions.

9. The respondent is granted leave to file and serve supplementary submissions to its submissions dated 13 December 2024 dealing with the Amended Grounds of Appeal by 30 January 2025.

10. The appellant is granted leave to rely on its reply submissions filed on 18 December 2024.

11. The appellant is to file and serve any supplementary reply submissions by 13 February 2025.

...

14. At the appeal hearing, parties can only rely upon documents that were not in evidence before the Tribunal in respect of the Tribunal hearing on 22 August 2024 if leave is granted. The parties are to include, in their submissions, any submissions regarding what is fresh evidence and why leave to rely upon it should be granted.

15. By 13 February 2025, the appellant is to file and serve a single document in the form of an index, not exceeding 5 pages, that clearly lists (a) the evidence that was before the Tribunal; and (b) evidence that was not before the Tribunal that the appellant is seeking leave to rely upon in the appeal.

...

Documents and Submissions Filed and Served After 19 December 2024

1. On 13 March 2025, the tenant's Solicitor filed and served further submissions in the appeal. Those submissions were a 23-page document entitled "Appellant's Response to Respondent's Submissions in Reply."

1. The landlord filed supplementary submissions to the tenant's Amended Grounds of Appeal on 7 February 2025.

1. Both parties appeared at the appeal hearing on 13 March 2025 by audio-visual link. Mr Hallmann, Solicitor, appeared for the tenant and Ms Harrington Solicitor appeared for the landlord.
2. Neither party sought an adjournment of the appeal hearing. Mr Hallmann stated that he was feeling unwell, but he did not apply for an adjournment despite being given the opportunity to do so.
3. The appeal hearing proceeded, with the parties making oral submissions.
4. In respect of the material that constituted submissions (i.e. legal argument) as distinct from fresh evidence, we have taken that material into account to the extent it was filed and served prior to the appeal hearing on 13 March 2025. Much of the submissions are repetitive.
5. Both parties, in our view, had a reasonable opportunity to make oral submissions at the appeal hearing on 13 March 2025 in conjunction with the written submissions.

Application to Seek Leave to Adduce Fresh Evidence After Conclusion of the Appeal Hearing on 13 March 2025

1. On 7 May 2025, the appellant's Solicitor wrote to the Appeal Panel seeking leave to re-open the appeal hearing to seek leave to rely on fresh evidence.
2. The evidence was a statutory declaration by the tenant dated 7 May 2025 comprising 33 pages (including annexures).
3. The annexures relevantly involved (a) a quote from Wynstan Blinds for 'Crimsafe' screens and doors to be installed at the residential premises; (b) the information provided by the landlord to tenants at the building "block meeting' held on 21 March 2025. A "block meeting" is a meeting between the tenancy manager of the landlord and tenants in a particular building; and (c) correspondence from the tenant's home and contents insurer.
4. On 13 May 2025, the Appeal Panel made procedural directions for parties to file and serve written submissions and documents on the issue of whether the tenant should be granted leave to re-open the appeal proceedings.
5. On 26 May 2025, the landlord's Solicitor filed and served written submissions opposing the application to re-open.
6. The issue of whether the Appeal Panel grants leave to re-open will be addressed later in this decision.

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. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law (if established) is an appeal made as of right 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 the examples of an error on a question of law that were discussed in Cusumano.
2. However, an error on a question of law may arise in the circumstances including the following:

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

(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J)

(3) 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]).

(4) 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] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 22 at [83]- [89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.

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 (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle, questions of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]- [20]; McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35].

1. We will deal with the Amended Grounds of Appeal and the tenant's lengthy submissions by focussing upon whether any errors on a question of law are established. We will then consider separately whether there are errors of a type that leave to appeal should be granted.
2. In dealing with the appeal grounds and submissions, the Appeal Panel is not required to engage with every argument or issue raised if the arguments are repetitive, overlapping, or irrelevant to the disposition of the appeal (Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 ( at [276] and [278]; Boensch Trust v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]- [8]).
3. Prolixity of grounds of appeal and submission by a legally represented party are inconsistent with the just, quick and cheap resolution of the real issues in the appeal, and also obscures apparent merit: Stoltenberg v Bolton; Loder v Same (2020) 380 ALR 145; [2020] NSWCA 45; at [52]; Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [6]; H2O Exchange Pty Ltd v Innovation and Science Australia [2021] FCA 11 at [19]).
4. The failure of a legally represented party to clearly articulate appeal grounds on errors on a question of law; and distinguish them from grounds requiring leave to appeal was discussed in Garofali v Moshkovich [2021] NSWCATAP 242 at [52]- [53] and [55] as follows:

"However, it is of no assistance to the Appeal Panel when a legally represented party cannot clearly identify and articulate what errors of law have purportedly occurred; nor clearly identify and articulate the distinction between purported errors of law (which do not require leave of the Tribunal) and errors other than errors of law to which leave to appeal is required.

This is not a new issue. The NSW Court of Appeal has been critical of practitioners who do not file and serve clearly articulated grounds of appeal and timely written submissions that engage with the grounds of appeal in Whyte v Broch (1998) 45 NSWLR 354 ('Whyte'); Lorbergs v State of New South Wales (1999) NSWCA 54 and Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [88]- [94]. In Whyte, Spigelman CJ referred to a pervasive "climate of complacency" regarding the failure of practitioners to file and serve timely outlines of submissions that engage with clearly articulated grounds of appeal.

...

However, all legally represented parties who appear in the Appeal Panel should, as a minimum standard, be able to clearly identify and articulate what are the purported errors of law or errors that require leave to appeal rather than merely provide a narrative as to why their client disagrees with the decision."

1. This appeal decision has been made more challenging by the conduct of the appeal. Those challenges are as follows:

(1) The appellant has filed Amended Grounds of Appeal that are prolix. They often fail to clearly distinguish errors on a question of law; and errors of a type that require leave to appeal despite referring to both concepts.

(2) The written submissions of the tenant are circumlocutive.

(3) The tenant's submissions do not clearly articulate what documents were in evidence at the Tribunal hearing on 22 August 2024; and what documents were not in evidence.

(4) Both parties' submissions (but particularly the tenant) include re-agitating factual matters pertaining to the tenancy dispute and seeking leave to freshly agitate events that post-date the Tribunal hearing on 22 August 2024.

1. In our view, denial of procedural fairness in the circumstances of this appeal raises an error on a question of law.

Denial of Procedural Fairness - Applicable Legal Principles

1. It is well established that the Tribunal is bound to conduct hearings in a procedurally fair way, and there have been a plethora of Appeal Panel decisions that have considered procedural fairness principles (e.g. Boreland v Brewis [2024] NSWCATAP 140; Chatterjee v Pandya [2024] NSWCATAP 85; Shandil v Tahany Pty Ltd [2024] NSWCATAP 82; Jeray v Blue Mountains City Council [2024] NSWCATAP 66).
2. Section 36 of the NCAT Act states:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal -

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) Despite subsection (2) -

(a) the Tribunal must observe the rules of evidence in -

(i) proceedings in exercise of its enforcement jurisdiction, and

(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

Note.

Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.

(5) The Tribunal is to take such measures as are reasonably practicable -

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b) may require evidence or argument to be presented orally or in writing, and

(c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

1. Procedural fairness involves principles which have a "flexible operation" (Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at [33] and at 585) to ensure a fair hearing. A general expression of the principles was enunciated by the Full Court of the Federal Court in Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301; (2015) 321 ALR 356 (per Mansfield, Tracey and Mortimer JJ) at [37]-[38] and [40]-[49]:

"[37] It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant: Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 ; 5 Fam LR 289 ; 25 ALR 418 ; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 350 ; [1986] HCA 39; 66 ALR 239 at 244 ; [1986] HCA 39; 10 Fam LR 917 at 921 (Re JRL) per Mason J; Allesch v Maunz (2000) 203 CLR 172 ; 173 ALR 648 ; 26 Fam LR 237 ; [2000] HCA 40 at [35] per Kirby J. Counsel for the minister did not, of course, gainsay that proposition.

[38] It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 ; [1944] HCA 5; [1944] ALR 130 at 136 per Rich J; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-6 per Dixon and Webb JJ.

...

[40] It is desirable to expand upon those propositions.

[41] At the level of general principle, it is as true now as it was in 1944 that:

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.

(Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589; [1944] HCA 5; [1944] ALR 130 at 136 per Rich J)

[42] In Re JRL at CLR 350; ALR 244; Fam LR 921 Mason J said:

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial, and even-handed.

[43] There are many more recent restatements of similar principles.

[44] In International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 at [54] French CJ, stated:

[54] Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.

[45] The High Court's decision in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 ; 295 ALR 638 ; [2013] HCA 7 (Pompano) concerned the performance of functions and the exercise of powers by State Courts under the Criminal Organisation Act 2009 (Qld), and the compatibility of those functions and powers with Ch III of the Constitution. It was, in that sense, a very different case to the present. None the less, the observations by various members of the court in that case about the role of procedural fairness in the exercise of judicial power were unequivocal. At [156], the plurality said (omitting footnotes):

[156] The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.

[46] The reference to the observations of Gleeson CJ is of course a reference to what the Chief Justice said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 ; 195 ALR 502 ; [2003] HCA 6 at [37] (Lam).

[47] In Pompano, Gageler J expanded on the centrality of procedural fairness to the judicial function, and to the exercise of judicial power. At [194] his Honour said:

[194] There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. "[A]brogation of natural justice," to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution.

[48] The context of his Honour's observations was a statutory regime contended to require an essentially unfair process. Here, we are concerned with the exercise of discretionary powers which compel no particular outcome in their exercise. The underlying proposition inherent in his Honour's observations is all the stronger in those circumstances. While Pompano includes State Supreme Courts in these constitutional principles, there is no doubt whatsoever that a court constituted in accordance with Ch III of the Constitution, such as the Federal Circuit Court, is not empowered to exercise its powers, or perform its judicial functions, unfairly.

[49] It is always necessary, as Gleeson CJ emphasised in Lam, to assess whether a process meets the necessary standards of fairness by examining the particular circumstances in which that process occurs, including (but not limited to) the statutory setting, the characteristics of the parties involved, what is at stake for them, the nature of the decision to be made, and steps already taken in the process."

1. Determination of whether there has been a denial of procedural fairness involves consideration of whether there has been any "practical injustice" caused to the appellant by reason of the conduct that is asserted to constitute a denial of procedural fairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; State of NSW v JR; State of NSW v Dickens; State of NSW v Jensen [2024] NSWCA 308 at [289]; Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [20]; Ah Sam v Mortimer [2021] NSWCA 327 at [22]; Italiano v Carbone & Ors [2005] NSWCA 177 at [88]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [80] Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 at [14]).
2. It is not always incumbent upon the appellant to demonstrate what they would have done, or what evidence they would have led. That is dependent upon the precise defect alleged to have occurred in the decision making process (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [58]-[59]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [41]- [43] and [76]-[80]; Donohoe v Albulario [2025] NSWSC 9 at [51]- [54]).
3. In YHY v YHZ [2024] NSWCATAP 117, the Appeal Panel referred to the authorities dealing with when a denial of procedural fairness is "material" to a decision as follows at [30]-[32]:

"As earlier noted, denial of procedural fairness by a decision-maker gives rise to jurisdictional error if it is "material." Materiality in this context refers to a realistic possibility, as distinct from a probability, that the decision could have been different as a matter of reasonable conjecture but for the denial of procedural fairness (see e.g. Nathanson at [33]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [31]- [41], [50]-[53]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]- [50], [68]-[69]).

As the High Court has recently explained in LPDT, in most cases, an error will be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. This is because a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance: at [7]. In some cases (such as apprehended or actual bias) the error of its very nature will be jurisdictional, irrespective of any effect that the error might or might not have had on the decision that was made: at [6].

As the High Court said in its joint judgment in LPDT at [16]:

"...unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an [appellant] establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met... (and curial relief will be justified subject to any issue of utility or discretion)".

1. In Nathanson, Kiefel CJ, Keane and Gleeson JJ in a joint judgment said (footnotes omitted):

"[33] There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity ... the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome."

1. The concept of materiality does not arise if there has been a failure to establish a denial of procedural fairness (El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329 at [101]- [105]).
2. What is a reasonable opportunity for a party to present its case is a matter of fact and degree, and it is not intended to protect a party from its own failures or strategic choices (Lieschke v Lieschke [2023] NSWCA 241 at [22]- [23]; [105]; [107]).
3. However, a different context arises if a party is self-represented, which involves a more nuanced approach to conducting a fair hearing to all parties that does not unfairly disadvantage a self-represented party but does not transgress into giving the unrepresented party judicial advice or running the party's case for them: Chalik v Chalik [2025] NSWCA 313 at [67]-[72]. In this matter, the tenant was legally represented and it is unnecessary to further explore the principles pertaining to self-represented parties.
4. A party failing to take best advantage of the opportunity to be heard is not a denial of procedural fairness. In the context of s 38(5)(c) of the NCAT Act, Walton J stated in Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [178]- [182]:

[178] Section 38(5)(c) is also applicable in the present context where the essence of the complaint made by the plaintiff is that he failed to receive an opportunity to be heard in relation to various matters that resulted in adverse findings in the context of the Tribunal's determination to make protective orders. That provision requires that the Tribunal is to take such measures as are "reasonably practicable" to ensure that the parties have "a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."

[179] It is not necessary in this matter to consider whether the condition appearing in the opening words of s 38(5) would materially affect the obligation falling upon the Tribunal to afford parties a reasonable opportunity to be heard under sub-s (5)(c). The procedural fairness requirement that a party be given a "reasonable opportunity" to be heard has, however, received consideration by the High Court of Australia in Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR208; [1989] HCA 13 at 219-220 (per Gaudron J) as follows:

... Ordinarily, when a decision on a question of law will affect the nature and range of the factual matters by reference to which the matter in issue may be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied. This must be so even if the existence of the question is not apparent until the hearing has concluded. Although, of course, the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled". And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81 at 84; [1988] HCA 4; 76 ALR 353 at 358.

[180] In Lucire v Health Care Complaints Commission [2011] NSWCA 99 ("Lucire") at [61] Basten JA (with whom McColl JA and Sackville AJA agreed) made the following observations about a reasonable opportunity to be heard:

On the other hand, the Commission's submission that procedural fairness merely requires a reasonable opportunity to present a case, rather than presentation of the case, should be accepted. The practitioner did have an opportunity of which she did not avail herself: however, the question is not whether she had any opportunity, but rather whether she had a reasonable opportunity in all the circumstances of the case. This question requires an assessment of practical and strategic considerations and not merely an assessment of abstract possibilities.

(see also Saleh at [20])

[181] That passage resonates with the well-known observation of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs, Re Ex parte Lam (2003) 214 CLR1; [2003] HCA 6 at [37] where his Honour stated: "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice" (see the discussion of various authorities applying the concept in King v Health Care Complaints Commission [2011] NSWCA 353 ("King") at [79]-[81]).

[182] In CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 (at [39]) Basten J observed that care must be taken with phrases such as "practical injustice" which, "can, taken out of context, appear to have a broad and indefinite scope of operation". However, the Court may have regard to whether, on proper examination, a complaint of unfairness has been established such as where an applicant was not deprived of an opportunity "to put his case as fully as he wished."

Has a Denial of Procedural Fairness Been Established?

1. There are three issues raised by the appellant in respect of a denial of procedural fairness.
2. The first is that there was no accommodation by the Tribunal Member for the tenant's disabilities, and she was denied a reasonable opportunity to follow the proceedings and provide instructions to her Solicitor Mr Hallmann. It is submitted that the Tribunal failed to provide breaks to the tenant.
3. The second is that there was insufficient time to conduct the hearing. The hearing was set down for a 1-day hearing. The tenant submits that 2 days should have been allocated to the hearing, and that 1 day was insufficient time to properly consider the issues in dispute.
4. The third is that the Tribunal did not provide the tenant with details of the procedural elements of her case, including her right to make submissions regarding her disability accommodations.
5. In respect of the taking of "breaks," early in the hearing Mr Hallmann referred to the tenant being "primarily housebound" due to her disabilities (T: P4:L26). The Member pointed out that the tenant was granted leave to participate in the hearing by audio-visual link if she wished (T: P4:L29-30). Mr Hallmann responded (T: P4:L33-36).

"Hallmann: Oh, she wanted to come today. And that's to get the point across, and that this is serious. This is not tiredness. She's not tired. She has asthma. She has an allergic reaction to the VOCs. Somebody walks in there and has deodorant on..."

1. In respect of the allocated hearing time and the issue of "breaks", the following exchange occurred early in the hearing, in the context of Mr Hallmann seeking to have the matter adjourned for a period of time to have settlement discussions with the landlord's Solicitor, and the Tribunal considering whether there would be utility in doing so (T:P5:L30-44 T:P6:L3-5):

Hallmann: I still have an area that is worth exploring with you on that. But we may be able to have discussions and work that out together. We have had some discussion yesterday evening, and we sort of have agreed we can potentially sit down and have a chat this morning.

Member: Look, this case is allocated for today. It's been going on since November. We're not going past today. So, whatever you want to utilise the time for, I'm willing to listen. But I'm not going to let you sit outside for an hour or two and then come back and be halfway through the case at 4 o'clock this afternoon.

Hallmann: This is a matter of how specific you'd like to make it. (The tenant) does have circumstances where she does need breaks. Certainly, a lot more than usual people need.

Member: OK, well, you can carry on. No, I'm more than happy for her to remove herself from the room at periods of time if that's what she needs to do.

1. Each party's Solicitor and the Member then spent a period of time debating whether or not there would be utility to the parties having settlement discussions. Ultimately, the Member was not satisfied that that would be productive and determined that the hearing proceed. There was a period of time spent ascertaining what documents would be admitted into evidence, in circumstances where Mr Hallmann had filed and served a large amount of documentary materials and submissions shortly before the commencement of the hearing.
2. When the issue of what documents and submission the parties were relying upon was resolved, witnesses were called. Mr Turner, the tenant's expert occupational hygienist, gave evidence by audio-visual link. Both Mr Hallmann and the landlord's Solicitor Ms Harrington questioned him. The tenant then gave evidence. Mr Hallmann and Ms Harrington questioned her. The hearing then moved on to what, in substance, was lengthy oral submissions including exploration of what access orders should be made in respect of the landlord seeking access to perform repairs.
3. Although Mr Hallmann had referred to the tenant needing "breaks," the transcript does not indicate he made any requests to the Member for a short adjournment for the tenant to take a break from the hearing; or so he could obtain instructions from the tenant. Rather, Mr Hallmann progressed with the hearing. He made extensive and discursive submissions during the course of the hearing.
4. In our view, there was nothing procedurally unfair about the hearing proceeding without breaks (beyond the normal lunch break). The transcript does not indicate the tenant left the hearing room, although she clearly had the opportunity to do so if she needed to. Mr Hallmann, as the tenant's legal representative, could have made an application at any time for a break in proceedings if he thought a break was necessary, either for the ability of the tenant to observe the hearing; or for him to get instructions from the tenant. He never did so. To impose an obligation on the Tribunal to, of its own volition, pause the hearing at various times in circumstances where a legally represented party was not seeking for breaks during the hearing is well beyond the requisite standard for a procedurally fair hearing.
5. Even if the tenant left the hearing room for periods without that being identified by the transcript, there is no articulation or identification as to how that absence affected Mr Hallmann's ability to conduct the hearing on behalf of his client.
6. A hearing does not have to be perfect to be procedurally fair. As Brereton JA (with whom Basten JA and Payne JA agreed) stated in Ah Sam v Mortimer [2021] NSWCA 327 at [22] in the context of a submission by a self-represented litigant that problems with audio-visual link technology caused a procedurally unfair hearing:

The problems with the audio-visual link described by Mr Ah Sam are, regrettably, not unfamiliar. They are borne out by the transcript available to this Court. It may readily be accepted that the conduct of proceedings remotely, using imperfect technology, presents additional difficulties for all parties. However, what the appellant has conspicuously failed to do is to identify how those problems caused him any practical injustice. He had the opportunity to make submissions after receiving the transcript, and, if he wished, to correct any errors in it. In particular, he has not identified any material matter which influenced the primary judge's judgment which he was precluded from addressing, nor any matter which he wished to place before the Court that he was unable to adduce. Nor has he shown how any finding of the primary judge adverse to him was affected by any shortcoming of the audio-visual link. It does not appear that the conduct of these proceedings remotely operated in any practical way prejudicially to the appellant, nor that it resulted in any injustice to him.

1. The tenant has failed to establish how the purported failure of the Member to provide breaks during the hearing has caused any practical injustice.
2. The second issue raised is insufficient time to conduct the hearing.
3. In The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 the Appeal Panel stated as follows at [97]-[99]:

It is uncontroversial that procedural fairness requires that both parties have a reasonable opportunity to present their case (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343)

The Tribunal has as its guiding principle the just, quick, and cheap resolution of the real issues in dispute in the proceedings (s 36 (1) of the NCAT Act. Parties and legal representatives have a duty to co-operate with the Tribunal to give effect to that guiding principle (s 36(3) of the NCAT Act). The practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the NCAT Act).

Imposition of time limits on parties' presentation of their cases does not, of itself, constitute a denial of the reasonable opportunity to be heard (Wootten v Godfrey [2019] NSWCATAP 255 at [61]- [62]). Further, the task of a Tribunal Member is to conduct the hearing in a fair and efficient way so that both parties have a reasonable opportunity to present their case and have their submission considered within the allocated hearing time. To properly administer a hearing, it is necessary for a Member from time to time to interrupt parties and representatives to keep them focussed on the real issues in dispute. It is not the role of the parties and representatives to dictate the procedural framework of the hearing to the presiding Member (_Macionis v Frankli_n [2021] NSWCATAP 367 at [53]).

1. We are not satisfied the length of time allocated to the hearing, or the manner in which the Tribunal Member provided structure to the parties, constituted a denial of procedural fairness. The tenant's 32 page 'Statement of Issues' contained copious legal arguments. The tenant's legal representative was given ample opportunity to present evidence and arguments at the hearing. Lack of clarity, conciseness, precision, or efficiency, by the tenant's legal representative in presenting legal argument does not mean the tenant was not given a reasonable opportunity to be heard.
2. In our view, the hearing time allocated was fair and reasonable. The criticisms of the Member raised by Mr Hallmann in his written appeal submissions and in oral submissions at the appeal hearing are unwarranted.
3. The third issue raised was that the tenant was not given an explanation of the procedure of the Tribunal and given the opportunity to make submissions regarding reasonable adjustments for her disability.
4. We do not accept that submission. There is no elucidation of how the Tribunal failed to adequately explain its procedure; nor what further "reasonable adjustments" would have been made; nor how those "reasonable adjustments" would have affected the conduct of the hearing.
5. In respect of the complaint that the hearing should have commenced in the afternoon, there is no practical injustice established. The tenant was represented by Mr Hallmann at the hearing, and as we have explained previously, it has not been established that the tenant did not have a reasonable opportunity to observe the hearing and provide instructions, irrespective of the hearing commencing at 10.30 am in the morning.
6. No error on a question of law is established. Ground one of the appeal is dismissed.

1. The tenant's Amended Grounds of Appeal and submissions assert that the Tribunal "erred at law" by "failing to find the (landlord's) conduct towards the (tenant) in enforcing various entry terms of the contract amounted to unconscionable conduct." There is a separate submission made that the Member erred by not finding that the residential tenancy agreement had been varied.
2. This is asserted to have arisen in the following circumstances:

(a) Failing to recognise the equitable principle of unconscionable conduct was superior to the provisions of the RT Act.

(b) Failing to consider the tenant's submission that the RT Act was "subject to unconscionable conduct in terms of equitable and common law principles."

(c) The Member forming the view that the RT Act was the sole basis of consideration.

(d) The Member not considering whether the residential tenancy agreement was varied by the parties regarding the terms upon which persons could enter the premises on behalf of the landlord.

1. As discussed previously, failure to consider a clearly articulated claim or legal argument may constitute an error on a question of law.
2. The Member did not refer to any claim based on 'unconscionable conduct' in the reasons.
3. The 'Statement of Issues' document dated 3 July 2025 that identified the tenant's claims did not articulate any claim under ss 20-22 of the ACL (NSW).
4. However, the words "unconscionable" and "unconscionable conduct" were raised by Mr Hallmann at various times in the hearing, in the context of the position of the tenant that, due to her medical conditions, persons (including tradespersons engaged by the landlord) could not enter the premises without acceding to a series of demands of the tenant. These exchanges are referred to in the tenant's written submissions. The exchanges also include assertions by Mr Hallmann that the tenant was also pursuing separate proceedings against the landlord under the Anti-Discrimination Act 1977 (NSW) (AD Act).
5. The Member made clear to Mr Hallmann that the proceedings brought by the tenant which the Member was considering, were brought under the RT Act, and any proceedings brought under the AD Act were distinct and would be considered separately.
6. That approach is orthodox and legally correct, in circumstances where proceedings under the AD Act involve separate legal considerations to the RT Act and are dealt with by a different Division of the Tribunal (the Administrative and Equal Opportunity Division).
7. In respect of an "unconscionable conduct" claim the Member pointed out to Mr Hallmann that the proceedings were brought under the RT Act, and it was a matter for Mr Hallmann to explain how an "unconscionable conduct" claim could be brought by the tenant against the landlord under the RT Act. Mr Hallmann failed to address this issue in his oral arguments to the Tribunal.
8. The jurisdiction of the Tribunal is set out in Part 3 of the NCAT Act. Its jurisdiction arises from what is conferred or imposed by the NCAT Act or any other legislation. Section 29 of the NCAT Act states as follows:

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if -

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction, or enforcement jurisdiction of the Tribunal.

Note.

The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

(4) A general application is an application made to the Tribunal for a general decision.

(5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act

1. Unlike ss 62A and 62B of the Retail Leases Act 1994 (NSW), there is no provision of the RT Act that provides a statutory cause of action under the RT Act for unconscionable conduct. The Tribunal does not have jurisdiction to consider purely equitable causes of action, although it has jurisdiction to consider equitable defences: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [67] and [74]; Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138 at [96]- [97].
2. The appeal submissions of the tenant only clearly refer to the "equitable principle" of unconscionability. As discussed previously, the Tribunal has no jurisdiction to consider unconscionability as an equitable cause of action, and there is no submission that it was raised as an equitable defence.
3. It is unnecessary for us to consider or comment upon ss 20-22 of ACL (see Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; (2021) 388 ALR 577 and Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 419 ALR 30) as those provisions were not raised in the Tribunal below, nor in the appeal: Yi v Park [2024] NSWCA 187 at [53].

1. The tenant submits that the RT contract between the parties (including the provisions incorporated into the contract by reason of the RT Act provisions dealing with access by a landlord) were varied to incorporate the disabilities of the tenant.
2. In our view, this is an issue and argument first raised on appeal, and it is impermissible for the tenant to raise it. The bald assertions of the tenant's submissions do not set out how the issue or argument was raised before the Tribunal.
3. Further, there is no clear articulation in the tenant's submissions as to how the RT agreement has been varied in accordance with the principles discussed by the Appeal Panel in Lewis and Smyth v Rejko Pty Ltd [2021] NSWCATAP 186 at [63]- [64].
4. No error on a question of law is established. Ground 2 of the appeal is dismissed.

1. The tenant submits that the Tribunal failed to "properly construe" s 52 of the RT Act by:

(1) Failing to take into consideration her "personal circumstances" including her disabilities; and

(2) Failing to consider the expert evidence and medical reports filed and served by the tenant in the proceedings, including the environmental report of Ms He dated 16 July 2024.

1. It is further submitted that the landlord, with knowledge of the tenant's disabilities and medical conditions, should not have placed the tenant in residential premises that created a risk of injury, although the tenant's submissions go further and assert that the condition of the premises has caused injury to the tenant.
2. The tenant refers to the authorities of Finn v Finato [2004] NSWCTTT 179; McLeish v FT Eastment & Sons Pty Ltd (1970) 91 WN (NSW) 268; Hampel v South Australian Housing Trust [2007] SADC 64 and NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164.
3. The landlord submits that the Tribunal did take into account the medical evidence and expert evidence pertaining to the tenant's disabilities, and applied the correct legal test, involving an objective assessment of whether s 52 of the RT Act had been breached.
4. Section 52 of the RT Act states:

52 Landlord's general obligations for residential premises

(1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

(1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises -

(a) are structurally sound, and

(b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and

(c) have adequate ventilation, and

(d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and

(e) have adequate plumbing and drainage, and

(f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and

(g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user.

(1B) For the purposes of subsection (1A) (a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades, and railings -

(a) are in a reasonable state of repair, and

(b) with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and

(c) with respect to the roof, ceilings, and windows - do not allow water penetration into the premises, and

(d) are not liable to collapse because they are rotted or otherwise defective.

(1C) The Secretary may exempt any specified premises or any specified class of premises from the operation of all or any part of this section. An exemption may be unconditional or subject to conditions.

(2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services, or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.

(3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises.

**Note - **

Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992.

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

1. The principles regarding whether premises are fit for habitation have been considered on many occasions (e.g. Steadman v Kennedy [2016] NSWCATAP 193 at [48]; Bhandari v Laming [2015] NSWCATAP 224 at [38]; NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164 at [17]- [20]; and Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [128]- [150]).
2. The test of whether there has been a breach of s 52 of the RT Act is objective. The concept of fit for habitation includes whether the state of repair of the premises is such that injury to the tenant is to be expected, or will naturally occur, from the ordinary use of the premises by the tenant. A finding that premises are not fit for habitation is not lightly made. The obligation imposed on the landlord under s 52 of the RT Act is a contractual requirement and a breach of s 52 of the RT Act can be established notwithstanding the tenant actually resides in the premises. The concept of "reasonable state of repair" involves consideration of whether the premises meet the minimum standard inherent in the contemporaneous understanding of the term "fit for habitation," having regard to the age of the premises, rent payable, and prospective life of the premises.
3. An appeal is against orders, not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. In BP v State of New South Wales [2019] NSWCA 223, Meagher JA, Payne JA and McCallum JA stated as follows (at [11]-[12]):

In relation to the appellant's principal point, that he wishes to challenge the "finding" of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

"... it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment."

The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

"[10] It is well established that a "judgment or order" in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour's observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge's reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment."

1. In this matter, the tenant succeeded in proving breach of s 52 of the RT Act in respect of the cleanliness of the premises at the commencement of the tenancy (paragraph [40]) and was awarded moderate damages for the cost of cleaning. The substance of the appeal on this ground is that the Tribunal erred in its reasons at paragraphs [40]-[45] that when it found that the tenant had not otherwise established the premises were not fit for habitation.
2. If the tenant establishes an error on a question of law in respect of this ground of appeal, the only potential outcome is that the tenant may be awarded a greater amount of compensation under s 187(1)(d) of the RT Act but not exceeding the monetary jurisdictional limit of the Tribunal. There has been a finding of breach of s 52 of the RT Act. What the tenant is submitting is that some of the findings were legally wrong. The issue of repairs to the premises involves considerations under ss 63 and 65 of the RT Act and were dealt with separately by the Tribunal. The Tribunal had no power under the RT Act to order the landlord to provide the tenant with different residential premises.
3. We are not satisfied that the Tribunal applied (without reference to the factual findings) the incorrect legal test in respect of s 52 of the RT Act. The reasons of the Tribunal refer to the test being objective, and that the Tribunal has considered the disabilities of the tenant in the context of whether or not the tenant established breach of s 52 of the RT Act beyond the cleanliness of the premises. In our view, the issues raised by the tenant in this ground of appeal involve a question of mixed fact and law. Accordingly, leave to appeal is required.
4. We will return to the issue of leave to appeal later in this decision. However, no error on a question of law is established in respect of ground three of the appeal.
5. To the extent it involves an error on a question of law, this ground of appeal is dismissed.

Ground 4 - Factual Findings Regarding Fitness for Habitation

1. The tenant's submissions acknowledge that this is a ground that requires leave to appeal. We will return to the issue of leave later in this decision.

Ground 5 - Loss of Quiet Enjoyment and Assessment of Damages

1. The tenant submits that the Tribunal "erred in law" when finding that the tenant had failed to establish breach by the landlord of s 50 of the RT Act (the obligation to provide quiet enjoyment of the premises) in respect of general repair works to the unit building, which caused the tenant to move out of the premises.
2. As discussed previously, this is dealt with at paragraphs [70]-[77] of the reasons. The Tribunal found that the landlord had not breached the obligation under s 50 of the RT Act; that the tenant's decision to move out of the premises was due to her own "sensitivities"; and the tenant was not entitled to damage or compensation under s 187 of the RT Act, either by way of general damages or economic loss in respect of the cost of alternative accommodation during the two week period she moved out.
3. Section 50 of the RT Act states as follows:

50 Tenant's right to quiet enjoyment

(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.

(2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort, or privacy of the tenant in using the residential premises.

Maximum penalty - 10 penalty units.

(3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort, or privacy of the tenant in using the residential premises.

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

1. In Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 (Hawkesbury) at [37], [51]-[53], Hill J stated (with Gallop at [1] agreeing):

"[37] The covenant for quiet enjoyment may be breached by the landlord (or those claiming under him) interfering with the physical occupation of the land by the tenant: Hill & Redman's Law of Landlord and Tenant (18th ed) para 936, note 1. The principal, as the cases discussed below indicate, may be expressed in the following way: there will be a breach of the covenant for quiet enjoyment where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts of the lessor or those lawfully claiming under him, whether or not the title to the land or the possession of the land is otherwise affected. Whether what is complained of amounts to a substantial interference will be a question of fact. A breach may result either from acts of commission or omission by the landlord: see generally, Dennett v Atherton (1872) 7 QB 316, 326-7, Robinson v Kilvert [1889] UKLawRpCh 47; (1889) 41 Ch D 88 at 97."

"[51] Although a lease creates an interest in land and covenants in the lease run with the land, a lease is a contract ... and in the event of a breach of the lease the party not in breach is entitled to damages for the breach. The measure of damages will be that applicable to contract, ...

[52] ... where damages are to be assessed for breach of contract the damages are the means of placing the plaintiff in the position the plaintiff would have been in had the contract been performed ...

[53] ... The fundamental principle is that so far as possible by a monetary award the plaintiff is to be placed in the position he or she would have occupied if the contract had been fulfilled ..."

1. The principles in Hawkesbury at [37], [51]-[53] are applied in the Tribunal in respect of the breach of the covenant for quiet enjoyment in a residential tenancy agreement under the RT Act: see, for example, Tanner v NSW Land and Housing Corporation [2023] NSWCATCD 24 at [25]; Bush v Menzies [2024] NSWCATCD 43 at [122]- [125].
2. Whether or not there is "substantial interference" is a question of fact. Findings on questions of fact involving breach of s 50 of the RT Act require leave to appeal. An example of a matter where a failure of a tenant to establish that the landlord breached s 50 of the RT Act required leave to appeal is McDonald v NSW Land and Housing Corporation [2015] NSWCATAP 163. Further, it must be recognised that the tenant bore the burden of proof. As Basten J stated in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [31]- [32]:

"It is true that an error of law may be found if the ultimate decision of the Tribunal were unsupported by any evidence logically probative of the underlying facts. It may also be accepted that such a decision may be characterised as manifestly unreasonable. There is, however, a clear distinction between those grounds and stating that the Tribunal took into account a matter which it was prohibited from considering. However, what the plaintiff appeared to be saying was that the finding that the legal error was immaterial was wrong, because it contributed to the refusal (as the plaintiff contended) to award her compensation for the breach of the right to quiet enjoyment of the lawn. (Whether the Tribunal made such a finding will be addressed below.)

Further, care must be taken in treating a negative finding, namely that there was no breach of a right of quiet enjoyment, as capable of challenge on the basis that there was no evidence to support it. The plaintiff bore the burden of establishing breach of the right by the defendant. [15] If she failed to satisfy that burden, she cannot rely on a no evidence ground."

1. Having considered the substance of the Tribunal's reasons at paragraphs [70]-[77], we are not satisfied the Tribunal applied an incorrect legal test irrespective of any factual findings, or that there was any other error on a question of law established.
2. Again, as with many of the grounds raised by the tenant, this ground is, in our view either a purported error of mixed fact and law; or an error in making factual findings that requires leave to appeal. We will return to the issue of leave to appeal later in the decision.
3. No error on a question of law is established. To the extent that this ground involves an error on a question of law, it is dismissed.

1. This ground involves the findings of the Tribunal at paragraphs [57]-[65] of the reasons that the premises were not sufficiently secure and the Tribunal should order additional security screens in circumstances where the tenant left windows open due to her various medical conditions and the condition of the premises. The Tribunal dismissed this aspect of the tenant's claim on the basis that it was not satisfied that breach of the landlord's obligation had been established, and it was open to the tenant to make a further request to the landlord to install further security screens.
2. The submissions of the tenant on this issue are broad. They are summarised as follows:

(1) Failing to take "full account" of the circumstances of the tenant when considering s 191(2) of the RT Act.

(2) The Member committing an error in "applying the law to the facts" because the Member "did not have the objective facts correct."

(3) The Member committing an error of fact in finding that existing window locks were sufficient when the tenant was "directed" by the landlord to keep windows open.

(4) The Member "failing to engage" with the history of the tenancy.

(5) The Member "failing to engage" or "failing to fully engage" with evidence of the tenant's complaints to the landlord.

70 Locks and other security devices

(1) A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure.

(2) A landlord or landlord's agent must give to each tenant named in the residential tenancy agreement a copy of the key or any other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access.

(3) The initial copies are to be provided free of charge but the landlord may recover from a tenant the cost of providing replacement or additional copies.

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

Note.

Section 191 provides for matters to be considered by the Tribunal when determining an action for a breach of this Division.

191 Matters for consideration by Tribunal in applications relating to security breaches

(1) This section applies to proceedings before the Tribunal relating to a breach of Division 7 of Part 3.

(2) For the purposes of determining whether a landlord has provided residential premises that are reasonably secure, the Tribunal may consider (but is not limited to considering) the following matters -

(a) the physical characteristics of the premises and adjoining areas,

(b) the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises,

(c) the likelihood of break-ins or unlawful entry or risks to the tenant's personal safety.

(3) For the purposes of determining whether compensation is payable to a tenant for a breach of the obligation to provide residential premises that are reasonably secure, the Tribunal must consider (but is not limited to considering) the actions taken, or that should reasonably have been taken, by the tenant and the landlord for the security of the premises.

1. The Tribunal's reasons refer to ss 70 and 191 of the RT Act. In our view, the grounds and arguments of the landlord do not establish an error on a question of law. The reasons do not indicate any failure to apply an incorrect legal principle to the facts or any other basis for an error on a question of law. Again, the tenant disputes the factual findings made by the Tribunal and requires leave to appeal as a question of mixed fact and law.
2. To the extent that this ground involves a purported error on a question of law, it is dismissed.

Ground 7 - The Tribunal's Refusal to Award Costs

1. This ground is a re-agitation of the tenant's claim for reimbursement of the cost of her expert hygienist report.
2. This was not a matter in which Regulation 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) applied, as the amount claimed or in dispute did not exceed $30,000. Accordingly, s 60(1)-(3) of the NCAT Act applied. The tenant's expert report was a disbursement that fell within s 60 of the NCAT Act rather than damages arising from any breach of the RT Act or residential tenancy agreement (The Owners-Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326; Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [16]).
3. For the tenant to be awarded costs as the successful party, the onus was on her to demonstrate that (a) there were "special circumstances" under s 60(2) of the NCAT Act, with matters that may be considered set out in s 60(3) of the NCAT Act; and (b) those "special circumstances" were sufficient to cause the Tribunal to exercise its discretion to depart from the usual principle under s 60(1) of the NCAT Act that each party bear its own costs (The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [5]- [15].
4. The submissions of the tenant on this ground do not identify, or establish, any error on a question of law. The Member's decision on this issue involved the orthodox application of established legal principles, and it was open to the Tribunal not to award the tenant costs. In respect of the exercise of discretion, no error of a type within the principles of House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (House v The King) is established that constitutes an error on a question of law, noting that not all types of errors identified in House v The King are pure questions of law. No error on a question of law is established.
5. To the extent that this ground involves a purported error on a question of law, it is dismissed.

Ground 8 - Dismissal of the Tenant's Claim for Economic Loss Damages For the Additional Costs of Using Appliances Due to Mould

1. This ground arises from the findings of the Tribunal at paragraph [82] that the tenant has failed to provide sufficient evidence to be awarded economic loss for the additional cost of operating electrical appliances due to mould. To be awarded the amount claimed (a total of $900) the tenant needed to establish (a) breach of the residential tenancy agreement by the landlord (such as the duty of the landlord to keep and maintain the premises in a state of good repair) and (b) that damages or compensation should be awarded under s 187(1) of the RT Act by reason of the breach.
2. The submissions of the tenant refer to several legal authorities regarding damages being awarded when it is difficult to estimate such loss. However, the submissions do not point to any cogent evidence provided by the tenant at the hearing to establish loss, such as electricity accounts or invoices.
3. The principles for assessment of damages caused by breach of a contract are well established. A concise summary of the principles is contained in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]- [42]. The failure to provide sufficient evidence to allow any rational assessment of loss justifies no damages being awarded. In the context of statutory compensation separate to breach of contract, the absence of sufficient evidence to prove any loss is an appropriate basis to decline to award compensation to the tenant applying the principles for assessment of compensation by Kiefel CJ, Gageler and Gleeson JJ in Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31 at [23]- [28].
4. It was open to the Tribunal to find that the tenant had not provided sufficient evidence to establish loss, and the Tribunal to dismiss this aspect of the proceedings. No error on a question of law is established.
5. To the extent that this ground involves a purported error on a question of law, it is dismissed.

Ground 9 - The Tribunal 'Erred in Fact' in Finding the Property Was Not Provided as Speciality Disability Housing

1. This ground of appeal involves the Tribunal's finding at paragraph [49] of the reasons that the premises were not "speciality disability housing" and the landlord was not a "specialist disability housing provider".
2. As the ground identified involves a factual finding, leave to appeal is required. As discussed previously, we will return to the issue of whether leave to appeal is granted later in the decision.
3. However, it is appropriate to comment on the purported distinction between a "special disability housing provider" and a social housing provider in the context of the RT Act. As discussed previously, the tenant argued to the Tribunal (and on appeal) that the landlord was a "specialty disability housing provider" that had an obligation to provide premises that accommodated all of the disabilities of the tenant, or to modify the premises to achieve that result. The landlord asserted it was not a "speciality disability housing provider."

Landlord's Duty to Repair-Applicable Legal Principles Under the RT Act

63 Landlord's general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part.

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

1. Section 65 of the RT Act relevantly states as follows:

65 Tenants' remedies for repairs - Tribunal orders

(1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders -

(a) an order that the landlord carry out specified repairs,

(b) an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant,

(c) an order that the landlord reimburse the tenant an amount for repairs to a smoke alarm carried out by the tenant under section 64A (3).

(2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

...

1. The dispute between the tenant and the landlord at first instance, and in the appeal, as to whether the landlord was a "specialist disability housing provider" or a "social housing provider" clouds the critical issue. The tenant asserted that the premises were provided in a condition that breached s 52 of the RT Act (because it was wholly or partially uninhabitable); and also that the landlord breached its obligation to keep and maintain the premises in a reasonable state of repair having regard to the age of the premises, the rent payable, and the expected life of the premises under s 63 of the RT Act. Those obligations exist whether the landlord is a "specialist disability housing provider" or a "social housing provider."
2. As discussed previously, the Consumer and Commercial Division's jurisdiction in this matter was under the RT Act; not under other legislation to which it does not have jurisdiction. The RT Act does not impose a higher obligation to provide premises which are reasonably habitable, or to keep and maintain premises in a reasonable state of repair, on a "special disability housing provider" as distinct from a social housing provider. The RT Act makes no reference to a "special disability housing provider."
3. Whether the landlord is a "special disability housing provider" may have a bearing on the objective assessment of whether its obligations under ss 52 and/or 63 of the RT Act have been breached. However, the findings made by the Tribunal on this issue involve factual findings, and no error on a question of law has been established.
4. We have previously discussed the relevant principles regarding habitability under s 52 of the RT Act, and they do not require repetition.
5. The duty under s 63 of the RT Act (subject to the qualification in s 65 of the RT Act) is well established (see, for example, Muraurer v Andresson [2016] NSWCATAP 15 at [12]- [13]; AL Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 at [79] and [101]). The test is objective and dependent on the particular facts and circumstances of the tenancy.
6. The tenant's argument that the landlord was a "special disability housing provider" was made in the context of the tenant seeking not only repair to the existing premises, but significant modifications (identified in the expert report of Mr Drexler) to accommodate her disabilities.
7. Whether a landlord's duty to repair includes modification of existing premises was discussed by the Appeal Panel in NSW Land and Housing Corporation v Khalkhali [2022] NSWCATAP 333. The Appeal Panel stated at [72]-[76]:

"The scope of the landlord's duty keep premises in a reasonable state of repair under s 63 of the RT Act does not extend to installing a new structure which is a capital improvement, as distinct from repairing the structure in existence at the commencement of the tenancy. As Higgins CJ stated in Re Newell [2003] ACTSC 31 at [17]- [18]:

The ordinary meaning of the term "repairs" is that of restoration of the relevant thing "to good condition by renewal or replacement of decayed or damaged parts, or by refixing what has given way; to mend" (Shorter Oxford Dictionary). It will come as no surprise that such is the meaning courts have afforded the term when considering an obligation to repair premises. Thus, in Ex parte Foote [1933] SAStRp 21; [1933] SASR 142, repairs were held to include replacement of broken or worn-out parts where necessary.

Conversely, making good structural deficiencies for the purpose of facilitating use by a tenant, not being other than a design shortcoming, is not within the meaning of the term "repairs" - see Lazar v Williamson [1886] NSWLawRp 8; (1886) 7 LR (NSW) 98.

In Taber v NSW Land and Housing Corporation [2001] NSWCA 182 it was held that a landlord's common law duty of care in the tort of negligence to a tenant did not extend to installing a handrail on a flight of four steps when non previously existed.

In Southwark London Borough Council v Tanner [2001] 1 AC 1 at [8] Lord Hoffman stated:

Keeping in repair means remedying disrepair. The landlord is obliged to restore the house to its previous good condition. He (sic) does not have to make it a better house than it originally was.

The Tribunal, and its predecessors, have held on a number of occasions that the scope of the duty to keep premises in a reasonable state of repair does not extend to altering the premises to provide different and improved structures that were not present at the commencement of the tenancy, as distinct from repairing the existing structure (including the renewal or replacement of fittings and fixtures that existed at the commencement of the tenancy): Beerby v NSW Department of Housing [1996] NSWRT 216; Stokes v Zarimis [2021] NSWCATCD 23; Venkataiah v Sekiguchi [2021] NSWCATCD 52;

If the state of disrepair is due to a design fault in the building, then work necessary to comply with the duty keep the premises in a reasonable state of repair may involve measures to address the design fault. Mustill LJ stated in McDougall v Easington District Council [1989] 1 EGLR 93 at 95-96:

Assuming, therefore, that the steps which the council took were capable of amounting to repairs, the question is whether the work done to no 37 in fact fell into this category. There are many reported cases on this topic. In addition to those already mentioned we were referred to Lister v Lane & Nesham [1893] UKLawRpKQB 109; [1893] 2 QB 212, Lurcott v Wakely & Wheeler [1911] UKLawRpKQB 33; [1911] 1 KB 905, Quick v Taff-Ely Borough Council [1985] EWCA Civ 1; [1986] QB 809, Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612, Stent v Monmouth District Council (1987) 19 HLR 269. Some of the problems discussed in these cases do not arise here. In particular, we need not consider the position which exists where the defects in design do not lead to structural disrepair but merely to lack of amenity; for there is no doubt that there had been in the past, and would continue to be in the future, deterioration in the structure which needed to be put right by one means or another. Nor do I think it necessary to attempt a complete reconciliation of the whole body of authority by means of a single statement of principle: for I believe that whatever particular formula one selects from the various judgments, the result in the present instance must be the same. It is sufficient to say that, in my opinion, three different tests may be discerned, which may be applied separately or concurrently as the circumstances of the individual case may demand, but all to be approached in the light of the nature and age of the premises, their condition when the tenant went into occupation, and the other express terms of the tenancy:

(i) Whether the alterations went to the whole or substantially the whole of the structure or to only a subsidiary part;

(ii) Whether the effect of the alterations was to produce a building of a wholly different character from that which had been let;

(iii) What was the cost of the works in relation to the previous value of the building, and what was their effect on the value and lifespan of the building.

Whichever of these tests one chooses to apply, and whether they are taken separately or together, the answer in the present case seems to me the same. When the work was complete, the house not only looked different; it was different. The changes were not simply cosmetic. The roof, elevations and fenestration were of different configurations and materials. With the exception of the basic concrete boxes, no feature of the house was left untouched in the course of the work. The outcome was a house with a substantially longer life and worth nearly twice as much as before. Acknowledging that repairs, properly so called, inevitably involve an element of renewal and improvement, I still think it clear that the learned recorder was right to hold that these could not be described as repairs. They gave the building a new life in a different form.

1. The modifications to the premises are not analogous to the installation of a missing back door (Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31 at [46]). The modifications sought were substantial.
2. In the context of the factual finding of the Tribunal that the landlord was not a "special disability housing provider" it was open to the Tribunal to find that significant modification and alteration of the residential premises fell outside the scope of the landlord's duty to repair under s 63 of the RT Act and it did not otherwise constitute a breach of s 52 of the RT Act.
3. As discussed previously, the enabling legislation (s 29(1) of the NCAT Act) that gave the Tribunal (in its Consumer and Commercial Division) jurisdiction to determine this dispute between a tenant and a landlord is the RT Act. The Consumer and Commercial Division lacks jurisdiction to consider complaints for breach of the AD Act. The jurisdiction of the Tribunal to determine claims arising under the AD Act arises through the legislative mechanism set out in Part 9, Division 2, Subdivision 6 and Part 9, Division 3 of the AD Act. That mechanism involves the referral of such matters to the Tribunal by the President of the Anti-Discrimination Board. The functions of the Tribunal relating to the AD Act are allocated to the Administrative and Equal Opportunity Division, not the Consumer and Commercial Division.
4. No error on a question of law is established in respect of this ground of appeal.
5. As with other grounds which involves leave to appeal, we will refer to leave to appeal later in this decision.

Ground 10 - Tribunal "Erred in Fact" In Finding That the Tenant's Conditions for Access Was a Contributing Factor to the Failure to Resolve Matters.

1. The tenant takes issue with the findings at paragraph [53] of the decision.
2. The tenant submits that the landlord's "attempt at access was inappropriate due to its unconscionable conduct" and "the Member engaged in an error of fact."
3. The landlord submits that it was never the position of the landlord that it never had been given access to the premises. It had access on "limited occasions prior to the hearing." However, it had been denied reasonable access by reason of the extensive conditions imposed by the tenant on a number of occasions it had sought access to perform repairs in April and May 2024.
4. The tenant submits that the landlord had acted "unconscionably" by refusing to accede to the tenant's conditions, which were justified by her disabilities and medical conditions.
5. We have dealt with the legal issue of "unconscionability" earlier in this decision, and it is unnecessary to repeat that analysis. Although this ground of appeal is identified as a finding involving factual matters (and thus requiring leave), it is appropriate to note that, if "unconscionability" is raised as an error on a question of law, the ground is dismissed because there is no error on a question of law established.
6. The Tribunal's findings that the tenant had not co-operated with the landlord regarding access and this was a basis to exercise a discretion to refuse a rent reduction under s 44(1)(b) of the RT Act involved findings of fact (Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 at [33]- [34] and [72]). Whether a tenant gave reasonable access to the premises is relevant to whether the rent is excessive by reason of a reduction or withdrawal of services or facilities by the landlord under s 44(1)(b) of the RT Act (Halil v NSW Land and Housing Corporation [2023] NSWCATAP 72 at [140]- [143]).
7. Even if this ground was characterised as an error on a question of law, no error on a question of law is established. We will return to the issue of leave to appeal later in the decision.

Ground 11 - The Tribunal Erred in Fact When Finding That The Tenant Contributed to the Delay in Repairs and Failed to Mitigate Due to Unrealistic Access Demands

1. This ground criticises the factual findings made in paragraphs [48] and [51] of the Tribunal decision. It overlaps with ground 10. Again, it is a ground requiring leave to appeal.

Ground 12 - The Tribunal Erred in Law In Having Regard to the Appellant Remaining in the Property Past the Fixed Term of the Tenancy Agreement

1. This ground involves the comment of the Member in paragraph [78] that the tenant "has remained in the property well past the fixed term..."
2. The tenant submits that the Tribunal committed an error on a question of law because it misunderstood or failed to correctly apply the principles in the Victorian Supreme Court decision of Sheilds v Deliopoulos [2016] VSC 500 (Shields).
3. No error on a question of law is established. Sheilds is authority for the proposition that the mere fact a tenant moves into a rental property and remains in it does not obviate the landlord's obligation to provide a property that is fit for habitation, or the landlord's obligation to maintain the property in a state of good repair.
4. The findings of the Member at paragraph [78] were not that the tenant taking possession of the property and remaining in the property past the end of the fixed term meant that the landlord had discharged its responsibilities. Rather, it was a comment made in the context of the Tribunal should not be awarded a further amount of general damages for loss of quiet enjoyment beyond the amount of $2,000 that was awarded at paragraph [36], which was based upon the landlord's representation that the premises would meet her "specific criteria".
5. The reasons in paragraph [78] need to be read fairly and in context, without an eye attuned to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [271]- [272]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77].
6. Assessed fairly and in context, there is no misunderstanding or misapplication of the principles in Shields. There is also no error in the exercise of discretion of a type under House v The King principles that would constitute an error on a question of law, as distinct from grounds requiring leave to appeal.
7. No error on a question of law is established and this ground of appeal is dismissed.

Ground 13 - The Tribunal Erred in Law By Awarding Global Compensation for the Failure to Maintain and Repair the Premises and Any Related Breach of Quiet Enjoyment

1. This grounds involves paragraph [86] of the Tribunal decision, whether the Tribunal "summarised" its decision, and stated that it was awarding the amount of $2,000 as "compensation/damages" for "breach of s 63 of the Act, failure to maintain and repair and any related breach of quiet enjoyment". This was a separate amount to amounts awarded for compensation by reason of the landlord's breach of ss 26, 52 and 55 of the RT Act.
2. The tenant asserts that the Tribunal should not have awarded a single amount and should have awarded specific separate amounts. The legal authority referred to is a decision of the District Court of South Australia in Taylor v Wise [2011] SADC 6 at [26]- [28].
3. The respondent submits that there is nothing in the order making power in s 187(1)(d) of the RT Act to require the Tribunal to award separate amounts for each individual breach and relies upon Corcoran v Far [2019] NSWSC 1284 at [92].
4. We do not accept that the assessment of compensation under s 187(1)(d) of the RT Act always involves identification of separate breaches and separate amounts. The task of the Tribunal was to arrive at a measure of compensation which conforms to the purposes of the RT Act and the justice and equity of the case having regard to the particular obligation with which there had been failure to comply. That task involves an "evaluative judgement": Young at [25] per Kiefel CJ, Gageler and Gleeson JJ. Relevant matters include loss of amenity; distress; and inconvenience caused by the breaches found by the Tribunal.
5. It was within the discretion of the Tribunal to assess damages in the manner it did. No error on a question of law is established.
6. This appeal ground is dismissed.

Ground 14 - The Tribunal Erred in Fact in Finding the Tenant Withdrew the Claim For Costs of Air Purifiers

1. Again, this is a ground that requires leave to appeal.
2. The tenant claimed $4,791 for the cost of air purifiers. The Tribunal found that this aspect of the claim was withdrawn at the hearing.
3. As is clear from the transcript (T:126-127) the tenant provided no evidence that she had paid for the cost of air purifiers. Rather, the air purifiers had been purchased by Bridge Connect Services, which was a business operated by the son of Mr Hallmann, the Solicitor who represents the tenant.
4. Mr Hallmann made a general oral submission that items that were paid through NDIS funding would constitute a loss to the tenant, because "when her funding (is) extinguished, she became personally liable for anything over and above the fund" (T:126: L25-29).
5. However, no evidence was provided by the tenant in her documents that she was liable to refund any monies expended by the NDIS scheme in respect of the purchase of air-purifiers, or that payment by the NDIS scheme would otherwise cause loss to the tenant.
6. The following relevant exchange occurred at the hearing:

Member: Who is the customer on that invoice? Matthew Hallmann.

Mr Hallmann: Well, it's Bridge Connect Services, so that's my son.

Member: Sorry?

Mr Hallmann: That's my son. That's my son. That would be his business.

Member: So, he's paid for those. And how is...And how is Ms O'Brien?

Mr Hallmann: It's a difficult one that one.

Member: OK, so let's forget the air...Let's forget the air purifiers. What about the other ones?

1. The submissions then moved to the claim by the tenant of hotel accommodation invoices for the period the tenant moved out of the premises. Those invoices were also issued to Bridge Connect Services.
2. In our view, considering the nature of the response by Mr Hallmann to the questions of the Member as to the absence of any evidence to verify a loss incurred to the tenant, and the fact that Mr Hallmann immediately moved onto other issues when the Member said "Let's forget the air purifiers" it was open to the Member to conclude that this claim was not pressed by the tenant and accordingly withdrawn.
3. Even if it was concluded that there was no withdrawal, it would have been open to the Tribunal to dismiss this claim on the basis that the tenant had not provided any evidence of having incurred an actual loss.

Ground 15 - The Tribunal Erred in Law in Failing to Make an Award for Stress and Anxiety

1. This ground of appeal again refers to the findings made by the Tribunal at paragraph [78] that the Tribunal was not satisfied that it was appropriate to award the tenant a separate amount for anxiety, distress and inconvenience beyond the amounts otherwise awarded.
2. It is well established that the Tribunal has the power to separately award compensation under s 187(1)(d) of the RT Act for the landlord's breach of the landlord's obligations in respect of the state of repair of the premises (ss 63 and 65 RT Act); and loss of quiet enjoyment (s 50 RT Act):see, for example, Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302.
3. The Tribunal did not assert at paragraph [78] that it had no power to make the order. Rather, it explained why it was not satisfied that the tenant had proved an entitlement to such an award.
4. No misunderstanding or misapplication of legal principles to the facts of a type identified in Bimson is established or any other type of error on a question of law. No error on a question of law is established and this ground of appeal is dismissed.

Ground 16 - The Tribunal Erred in Law In Failing to Make an Award of Damages for Stress and Anxiety

1. This ground of appeal is, in substance, a repetition of earlier grounds that have been dealt with. No error on a question of law is established and this ground of appeal is dismissed.

1. As discussed previously, the prolix ground of appeal, on many occasions, raise factual findings that require leave to appeal.
2. Those grounds, and the submissions pertaining to those grounds, take issue with most of the factual findings made by the Member.
3. By reason of the copious number of factual findings challenged on appeal, it is sufficient to set out their substance rather than detail every factual finding (Edwards v State of New South Wales [2022] NSWCA 187 at [58] and the authorities cited therein). We have set out the substance of the factual matters challenged earlier in this decision.
4. We are not satisfied that leave to appeal should be granted. The factual findings made by the Tribunal were, in our view, orthodox and open to the Tribunal to make on the evidence before it.
5. We are not satisfied that the tenant may have suffered a substantial miscarriage of justice under Sch. 4 Clause 12 of the NCAT Act, applying the principles for leave to appeal that were identified and discussed in Collins v Urban at [76]-[85].
6. In our view, the magnitude of the purported errors of law involves an attempt by the tenant to re-agitate the dispute and convert the appeal into a new hearing where the Appeal Panel is reconsidering the dispute de novo. We are not satisfied that there is any proper basis to conduct the appeal as a new hearing under s 80(3) of the NCAT Act.
7. The tenant, in appeal submissions, not only identifies the grounds of appeal, but then goes on to identify matters that should be the subject of a "merits review." The "merits review" submissions repeat many of the previous submissions regarding error on a question of law and leave to appeal in a slightly different guise.
8. As discussed previously, internal appeals under s 80 of the NCAT Act do not involve a general "merits review" of the decision below. The submission that the Appeal Panel should engage in a "merits review" is rejected.
9. Leave to appeal is refused.

1. The tenant has failed to establish any error on a question of law in the decision under appeal. The tenant has also failed to establish that leave to appeal should be granted. Accordingly, leave to appeal is refused and the appeal dismissed.

1. Fresh evidence that was not before the Tribunal can only be relied upon in an appeal in limited circumstances, and we have only allowed the fresh evidence on the basis of determining whether leave to appeal should be granted.
2. It is appropriate for the Appeal Panel to consider fresh evidence to determine whether or not leave to appeal should be granted under s 80(2)(b) of the NCAT Act if the tenant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) under Cl. 12(1)(c) of Sch. 4 of the NCAT Act.
3. The Appeal Panel may regard it appropriate to determine the appeal, in whole or part, as a new hearing under s 80(3) of the NCAT Act because the grounds "warrant a new hearing" (Yuen v Thom [2016] NSWCATAP 243 at [14]- [22]; Ros v Commissioner of Police [2020] NSWCATAP 243 at [31]- [43]).
4. Even if the appeal grounds do not warrant a new hearing under s 80(3) of the NCAT Act and the appeal hearing is conducted under s 80(1) of the NCAT Act, fresh evidence may be allowed if the interests of justice require that the evidence be admitted to properly consider the appeal issues (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [29]- [30] and [39]-[44]).
5. Neither party has established that any fresh evidence is necessary to properly consider the appeal issues, and that it is in the interests of justice to admit it.
6. In this matter, to the extent that the tenant asserts there is significant new evidence that would cause the Appeal Panel to grant leave to appeal, none of the evidence is significant new evidence that was not reasonably available at the date of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
7. As discussed previously, we are not satisfied that any of the grounds of appeal warrant a new hearing under s 80(3) of the NCAT Act.
8. In respect of s 80(1) of the NCAT Act, it is not in the interests of justice to admit any of the factual evidence regarding disputes between the landlord and tenant that post-date the Tribunal hearing. The parties are in an ongoing relationship. Any rights and obligations that post date the Tribunal hearing are not matters that require determination by the Appeal Panel, in circumstances where either party may take fresh proceedings in the Tribunal.

1. The Appeal Panel has the power to re-open an appeal hearing: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners Strata Plan No 64807 [2023] NSWCA 188 at [90] and [161]-[162].
2. The principles regarding leave to re-open are well established: Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471; Wassef v Panagiotopoulos [2019] NSWCATAP 101; Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46].
3. The critical enquiry is whether it is in the interests of justice to grant leave to re-open. Further, the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the party can show that by accident without fault on his or her part, the party has not been heard.
4. In this matter, the application for leave to re-open involves documents and events that have occurred well after the appeal hearing has concluded. It is not in the interests of justice to grant leave to the appellant to re-open the appeal hearing.
5. Leave to re-open is refused.

Application for An Order Under s 64(1)(a) of the NCAT Act

1. The tenant's submissions dated 6 December 2024 contain an application to prohibit or restrict publication of her name. We have dealt with that issue in separate reasons issued to the parties. We dismiss that application.

1. The landlord submitted that it seeks to be heard on the issue of costs. The tenant's submission assert that no costs order should be made.
2. Note 9(2) of the orders made by Blake PM at the Call Over of the appeal on 4 October 2024 states as follows:

"(2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submission on costs at the same time as their submissions in relation to the appeal".

1. It is open to the Appeal Panel to determine the issue of costs, but to give the parties the opportunity to apply to vary the order: see, for example, Wells Group Pty Ltd v Betts [2025] NSWCATAP 70.
2. However, due to the breadth of the issues dealt with in this decision we are satisfied that it is appropriate for both parties to be separately heard on the issue of costs. Our orders and direction deal with how a costs application is to be dealt with.

Variation of the Tribunal Order to Conduct Repairs

1. As the appeal has been dismissed, the Stay is lifted.
2. This removes the suspension of the operation of Orders 2, and 3 of the Tribunal involving specified repairs and access to the premises on specific dates. The other orders of the Tribunal (which included orders that the tenant could not obstruct access or impose orders or conditions on the landlord or the landlord's contractor; and that if the landlord could not obtain access to the premises on the date specified in the orders, the landlord could change the locks to obtain access) were not the subject of a Stay.
3. The date of access specified in Orders 2 and 3 of the Tribunal has passed.
4. Considering the appeal has been dismissed, it is appropriate to vary the orders of the Tribunal under appeal, pursuant to s 81(1)(b) of the NCAT Act to vary the date of compliance in the orders: Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 at [136]- [137]; Westwell v Kitson [2018] NSWCATAP 121 at [48].
5. If the Appeal Panel does not do so, the landlord will need to file a fresh application in the Tribunal seeking to extend the date of compliance. That will only lead to further disputation between the parties, which is unnecessary when the tenant has failed in the appeal. The Tribunal made access orders that included the tenant not obstructing the landlord or its contractor and/or imposing conditions on the landlord or its contractor.
6. The orders identified a specific date of access, which was a matter ventilated at the Tribunal hearing (T:150-155). The Member at the hearing originally indicated that he was going to give the landlord 45 days to complete repairs; but the tenant stated to the Member she could allow access on the 13th and 14th of September, and the landlord sought that the dates be specified in the orders to give certainty.
7. In all the circumstances it is appropriate to vary Orders 2 and 3 so that:

(a) The time period for the landlord to complete the repairs is 4 months from the date of this decision.

(b) The landlord is to inform the tenant in writing by email and additionally by post, giving the tenant a minimum of 21 days' notice, as to when the landlord and/or its contractor will access the premises to conduct the repairs set out in order 2 of the Tribunal dated 29 August 2024.

(c) Other than as varied, Orders 1, 2, 3, 4, 5 and 6 of the Tribunal dated 29 August 2024 continue to apply and are confirmed.

(1) Previous Stay orders of the Appeal Panel are lifted immediately.

(4) Orders 2 and 3 of the Tribunal dated 29 August 2025 are varied so that (a) the repairs in Order 2 are to be completed by four (4) months from the date of this decision; and (b) the landlord is to inform the tenant in writing, by email and additionally by post, of the dates on which the landlord and/or its contractors will be accessing the residential premises to conduct the repairs, giving the tenant a minimum of 21 days' notice of the date or dates of access.

(5) Otherwise as varied by Order (4) above, the orders of the Tribunal dated 29 August 2025 are confirmed.

(6) The issue of costs is to be determined as follows:

(a) Costs applicant to lodge with the Appeal Panel and serve on the costs respondent all documents and submissions in support of the costs order sought by 28 days from the date of this decision.

(b) Costs respondent to lodge with the Appeal Panel and serve on the costs respondent all documents and submissions in opposition to the costs orders sought by 49 days from the date of this decision.

(c) Costs applicant to lodge with the Appeal Panel and serve on the costs respondent all submissions in reply by 63 days from the date of this decision.

(d) Either party may apply to the Appeal Panel or the other party in writing to seek to vary the timetable for the lodging and serving costs documents and submissions.

(e) Both parties are granted leave to lodge and serve their costs submissions and documents by email.

(f) The costs submissions of the parties are to include whether they consent to a hearing on the issue of costs being dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), and if not, why not.

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

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.