Perkins v Link Wentworth Housing Limited

1. The decision of the Tribunal records that oral reasons were given for the making of the orders.
2. On 5 June 2025 Mr Perkins filed an appeal against these orders. He also sought a stay. On 11 June 2025 the Appeal Panel granted a stay, but only in relation to the order concerning blocking access to underneath the house.
3. On 12 June 2025, in accordance with the Tribunal's orders, the work required in items (c) to (g) above was completed. As we understand it, these items were completed with the consent of Mr Perkins. At the time of the appeal hearing items (a) and (b) remained outstanding.
4. The orders of the Tribunal have largely been complied with and overtaken by events and this raises an issue as to the utility of the appeal. However, it appears that at the time items (a) and (b) were not completed as Mr Perkins objects to the orders authorising Link Wentworth to carry out this work. At the appeal hearing Link Wentworth agreed not to proceed with item (a) but presses item (b).
5. On the appeal Mr Perkins raises issues of procedural fairness with respect to the making of the orders. We therefore consider that there is utility in the appeal proceeding. However, for the reasons set out below we dismiss the appeal and order that the works ordered by the Tribunal on 22 May 2025 in relation to item (b) may be carried out by 7 November 2025.

1. Mr Perkins' Notice of Appeal was filed within the applicable period in r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
3. There are several important cases relevant to the construction of s 80 of the NCAT Act. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act.
4. The Appeal Panel there said, inter alia, that (citations omitted):

(1) Absent leave to appeal, the question of law is the subject matter of the appeal. The question of law should be articulated with precision.

(2) A question of law means a pure question of law.

(3) A "pure question of law" does not depend on facts not found.

(4) A mixed question of fact and law is not a question of law. An appeal is "on" any question of law: s 80(2) of the NCAT Act.

(5) The question of law must not be hypothetical or arid.

(6) An appeal is against orders and not reasons. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31]-[32].
2. In the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 to the NCAT Act on the basis that:

.....the appellant may have suffered a substantial miscarriage of justice because:

(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. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion to grant leave: see Collins v Urban [2014] NSWCATAP 17.
2. An appellant has to demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: see Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]. Nor does an appeal provide a losing party with the opportunity to run its case again: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. In his Notice of Appeal Mr Perkins indicates that the Tribunal made an error on a question of law and that he also is seeking leave to appeal. He did not provide any written submissions to elaborate on his grounds but we are able to discern that his appeal is based on the ground that he was denied procedural fairness in the conduct of the hearing by the Tribunal. We are satisfied that this ground raises an error on a question of law and leave is not required: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](4)); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]- [84].
4. Insofar as Mr Perkins seeks additional orders in this appeal requiring Link Wentworth to carry out other repairs/modifications to his home, that falls outside the scope of the appeal which is confined to whether the Tribunal made errors in the determination of the application by Link Wentworth for access orders under s 55 of the Residential Tenancies Act 2010 (NSW).

1. In addition to the Notice of Appeal, Mr Perkins has filed a bundle of documents. The documents relate primarily to substantive issues concerning the repairs/modifications and also to emails between Mr Perkins and Link Housing regarding the repairs/modifications and access to the premises.
2. Link Wentworth also relies upon a bundle of documents filed with the Appeal Panel. The bundle includes documents which were provided to the Tribunal at the hearing and other documents which have come into existence since the Tribunal made its decision on 22 May 2025. No application was made by Link Wentworth to rely on new evidence in the appeal and we have not had regard to the documents which post-date the hearing.
3. Neither party provided written submissions and neither party provided a transcript or recording of the hearing before the Tribunal on 22 May 2025.

1. The access application made by Link Wentworth was listed for conciliation and hearing at 11:15 am on 22 May 2025. Both parties attended the Tribunal on that day.
2. In the Notice of Appeal Mr Perkins states that no agreement was reached at conciliation. He states the Tribunal hearing was rushed and only one representative of the applicant (Link Wentworth) and himself were permitted to speak. He also states that the Tribunal Member did not provide him with time or assistance to formulate his response to the applicant's case, even when he asked to be reminded of the main points raised by the applicant.
3. Mr Perkins goes on to say that the Member did not allow him time to review information he needed to fully present his case. This included information about his disability which means he has difficulty complying with requests to move his possessions; reasons he had not moved all of his possessions to allow maintenance work under the house; evidence that he did not refuse entry to contractors; and the failure of Link Wentworth to provide the assistance they had offered to help with preparation for the maintenance work.
4. In summary, Mr Perkins states that he was not permitted to present his case properly at the hearing as to why the orders sought by Link Housing should not be made.
5. As noted above, neither party provided a transcript or recording of the hearing on 22 May 2025. This is despite the Appeal Panel making clear directions to each of the parties on 11 June 2025 that if oral reasons were given and/or what happened at the hearing is being relied upon, the party is to provide a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing.
6. Nevertheless, in order to gain some understanding of what occurred at the Tribunal hearing, we questioned the parties at the appeal hearing about what happened at the hearing before the Tribunal.
7. Mr Perkins gave a confused account of what happened. He at first said that he told the Member he was unhappy with Link Wentworth blocking access to under the house. He said he stores a bit of stuff under the house, including tyres, three lawn mowers, garden tools and garden hosing and has nowhere else to store these items. He also stated he has never refused access or cancelled contractors. Mr Perkins was concerned that he had been given no explanation for why access should be blocked.
8. At one point Mr Perkins said he was able to put his point of view to the Tribunal and had no objection to the contractors coming in to do the work. At another he said the Member did not ask him any questions and only talked with the representative from Link Wentworth. He said the Member did not speak to him at all before making the orders. Mr Perkins said the Member was rushing because it was coming up to lunch time.
9. The representative for Link Wentworth who attended the appeal hearing, Mr S Maxwell, was not the person who represented Link Wentworth at the Tribunal Hearing. Mr Maxwell said, however, that he was in the hearing room at the time Mr Perkins' matter was heard as he was involved in another matter that day. According to Mr Maxwell, the Member asked the Link Wentworth representative about the works, why they were needed and the date for the works. He said the Member asked Mr Perkins if he had objections to the work and the date and that Mr Perkins said he did not have any objections other than to the work involving blocking access to under the house.
10. The evidence given to us about what happened at the hearing is unsatisfactory. While Mr Maxwell may have been present, he was not involved in the matter and we have no way of knowing whether his recollection is correct. In his evidence, Mr Perkins had difficulty in distinguishing between what happened during conciliation and what happened at the hearing. He also gave different accounts of what happened at the hearing in his Notice of Appeal and at different points in the appeal hearing. We accept that it can be difficult for unrepresented parties to present their case, particularly if, as here, they have a disability. However, the Appeal Panel can only act on the material before it.
11. As Mr Perkins has not provided a transcript of the oral reasons for decision given by the Tribunal Member, or a typed transcript of any other part of the hearing that he thought was relevant or a sound recording of the entire hearing, we are not in a position to know what occurred at the hearing . We also do not have the benefit of a transcript of the oral reasons for the decision given by the Member on the day which may have assisted us to determine whether there was some error in the Member's decision making process. In the absence of the sound recording being provided as directed, we cannot be satisfied that the concerns raised by Mr Perkins as to procedural fairness are made out.
12. The Appeal Panel has addressed the issue of the inherent difficulties in establishing error on the part of the Tribunal when the error is said to rely upon what happened at the hearing: see, for example, Dabous v Dannoun [2024] NSWCATAP 265 at [22]; Tran v Brown [2022] NSWCATAP 343 at [7]; Liu v Gris [2025] NSWCATAP 122 at [40]- [44].
13. As we cannot be satisfied that Mr Perkins was denied procedural fairness, this appeal ground is not made out.
14. Mr Perkins also seeks leave to appeal but relies on the same issues raised in respect of the alleged procedural unfairness. For the reasons above, there is no indication he may have suffered a substantial miscarriage of justice for any of the reasons set out in cl 12 of Sch 4 to the NCAT Act. Leave to appeal is therefore refused and the appeal dismissed.
15. The stay order made on 11 June 2025 is lifted. As the time specified in the orders of 22 May has now passed, we will vary the order authorising the landlord or their contractor to enter the premises in order to carry out works to block access to underneath the house.

(4) Order 1 made in matter 2025/00167823 is varied to provide that upon giving the tenant 5 days' notice, the landlord or their contractor is authorised to enter the premises in South Windsor occupied by the tenant on a date between publication of this decision and 12 November 2025 between the hours of 8:00 am and 5:00 pm to carry out works to block access to underneath the house.

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.