Pintaric v Atilgan

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

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

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Craig v South Australia (1985) 184 CLR 163; [1985] HCA 58

Crampton v R (2000) 206 CLR 161; [2000] HCA 60 at

Donohoe v Alburario [2025] NSWSC 9

Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174

Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719

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

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32

Kumar v SMJ Construction Group Pty Ltd [2024] NSWCATCD 56

McCartney v Wood [2023] NSWCATAP 131

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Mulcair v Callum [2024] NSWCATAP 30

O'Connor v O'Connor [2022] NSWCA 97

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Pholi v Wearne [2014] NSWCATAP 78

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 70

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

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

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

University of Wollongong v Metwally (1985) 60 ALR 68; [1985] HCA 28

Yuen v Thom [2016] NSWCATAP 243

1. This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT) from a decision of the Consumer and Commercial Division of the Tribunal to award a tenant $4,478.
2. The appeal involves the 'rent reduction' component of that award.
3. In this decision, any reference to "the landlords" is a reference to the appellants and any reference to 'the tenant' is a reference to the respondent.
4. The critical issue in the appeal is whether the landlord's agent, who appeared at the Tribunal hearing, had actual or ostensible authority to make a concession regarding the amount of the 'rent reduction' and the landlord is bound by the concession.

1. In about December 2019, the parties entered into a residential tenancy agreement. The residential premises was a strata unit located on the top floor of the strata building. The rent was originally $350 pw but increased over the duration of the tenancy to $510 pw. Residing in the premises with the tenant were her two young children.
2. At all relevant times, the landlord had a licensed agent managing the property on behalf of the landlord.
3. On 22 April 2025, the landlord (by the landlord's agent) issued the tenant with a 'no grounds" termination notice under s 85 of the Residential Tenancies Act 2010 (NSW) (RT Act) as it was prior to amendments to the RT Act that came into effect on 19 May 2025.
4. On 21 May 2025, the tenant commenced proceedings in the Tribunal. The tenant sought various orders. Relevant to this appeal, the tenant sought orders for a rent reduction under s 44(1)(b) of the RT Act; and an order for compensation under ss 187/190 of the RT Act due to the landlord's failure to keep and maintain the premises in a state of good repair.

The Tenant's Allegations and the Application Filed in the Tribunal

1. The Tribunal application filed by the tenant made various allegations regarding the condition of the premises and requests for repairs to the landlord's agent. The tenant alleged that there had been mould issues in the premises from soon after the date she had moved in. The tenant had requested the roof of the strata building be inspected. Carpet in the premises had been damaged by water, and there was mould under the carpet that was not repaired for approximately 6 months. Mould was continually present on ceilings, walls and cracks in the ceiling.
2. The tenant had requested rent reductions from the landlord's agent due to the condition of the premises, which were refused. The landlord also refused various requests for repairs. There was a significant water ingress event in the bathroom through the ceiling after heavy rain on 20 June 2024. The tenant had complained of asbestos in the premises. In March 2025, the landlord had refused to engage an expert to inspect the premises for asbestos. The tenant also complained of pest ingress, including a rat entering the premises.

Procedural History In the Tribunal and Decision of the Tribunal

1. On about 16 August 2025, the tenant moved out of the premises and the lease ended.
2. After procedural directions where parties were directed to file and serve documentary evidence, the matter was listed for hearing at the Tribunal on 3 September 2025.
3. The tenant appeared at the hearing with assistance of an interpreter. The landlord's licensed agent Mr Khan represented the landlord.
4. The Tribunal issued a decision with written reasons on 8 September 2025.
5. The order of the Tribunal was that the landlord pay the tenant $4,478 by 1 October 2025. The order was particularised as follows:

(a) Rent reduction of 15% from 1 July 2024 to 30 June 2025-$3,978.

(b) Compensation for mould on bookcase-$50.

(c) Compensation for pest associated products-$250.

(d) New curtain and curtain rods-$200.

1. The Member's reasons at paragraph [1]-[7] set out the background to the dispute and the claims of the tenant. Paragraphs [8]-[9] set out who appeared at the hearing and that each party relied upon documentary evidence. Paragraph [11] identifies that the tenant bears the onus of proof. Paragraphs [12]-[24] set out applicable legal principles, with focus upon the landlord's obligation to keep and maintain premises in a state of good repair, having regard to rent payable; age of the premises; and expected life of the premises (ss 63 and 65 of the RT Act). The reasons also refer to a rent reduction under s 44(1)(b) of the RT Act.
2. The findings critical to the appeal are as follows (at [25]-[27]):

"...

Rent Reduction

The tenant presented the submissions with the assistance of an interpreter. The tenant originally provided submissions that the rent reduction of 25% related to the mould issue associated with second bedroom. The tenant claimed a rent reduction of $70 per week which amounted to $3,640. After some time, the tenant then changed her submissions such that the rent reduction related to repairs over a 12 month period in the sum of $6,630 and then a further $3.640 for the second bedroom. On the balance of probabilities, I do not accept the submissions in relation to the rent reduction for the alleged repairs. The tenant failed to provide evidence to support this submission.

In response to the submission concerning the rent reduction, the landlords were prepared to concede a rent reduction of 15% from July 2024 to July 2025. This equates to $76.50 per week.

I was shown a number of photographs which evidenced mould in the apartment. The landlord provided photographs that demonstrated the tenant covered up the air vents in the apartment. The tenant conceded that she had covered up the air vents. In the circumstances it is unknown the impact this action has had in relation to the mould issue. It is noted that the tenant bears the onus. Noting the concession of the landlord, I am prepared to permit a rent reduction. Furthermore, I am prepared to allow a 15% rent reduction which is consistent with the loss of the second bedroom as submitted by the tenant.

..."

1. After the orders of the Tribunal were issued, the landlords made an unsuccessful application to the Tribunal to have the orders set aside.

1. On 19 September 2025, the landlords filed a Notice of Appeal. The appeal has been filed within the applicable time period for an internal appeal under Reg. 25(4)(b) of the _Civil and Administrative Tribunal Rules 2014 (_NSW).
2. On 19 September 2025, the landlords filed an application for a Stay of the money order under appeal under s 43 of the NCAT Act.
3. On 3 October 2025, the Appeal Panel (Blake PM) set the appeal down for hearing and made procedural directions.
4. The Stay application was listed for hearing on 17 October 2015. On that date, Charles SM dismissed the Stay application, with oral reasons given.
5. On 10 October 2025, the tenant filed a Reply to Appeal.
6. On 27 October 2025, the landlords filed a second Stay application. That matter was listed for hearing on 7 November 2025. The Appeal Panel (Sarginson DP) dismissed the second Stay application, with oral reasons given.
7. Both parties filed and served documents and submissions in the appeal.
8. In addition to documents that were attached to the Notice of Appeal (distinct from the documents and submissions filed and served in the two Stay applications) the landlord filed and served appeal documents and submissions on 6 November 2025.
9. The tenant filed and served appeal documents and submissions (distinct from the documents filed and served in opposition to the two Stay applications) on 10 October 2025 and 24 November 2025.
10. The documents of the tenant included a full written transcript of the Tribunal hearing. The documents of the landlord included relevant extracts that the landlord relied upon to support their position.

1. Both parties seek leave to rely upon documents that were not in evidence at the Tribunal hearing, in addition to the documents they tendered at the Tribunal hearing.
2. The documents the landlords seek leave to rely upon include a statement of their agent, Mr Khan, and statements by them regarding the concessions made by the agent at the hearing.
3. The statement of Mr Khan is dated 23 October 2025. He states that made an "error" regarding his submissions at the Tribunal. He relevantly states as follows:

"...

I incorrectly represented that the rent reduction as being 15% for a 12-month period. This was an error on my part. The landlord's actual instruction was to approve a 25% rent reduction for three months only, and this arrangement was made outside of the NCAT proceedings.

On the day of the hearing, the tenant sought a 25% rent reduction for 12 months. To protect the landlord's interests, I attempted to negotiate a more reasonable outcome by proposing a 15% reduction, but this was not reflective of the landlord's true instructions.

..."

1. The landlords each signed identical affidavits dated 25 September 2025, stating that "the only discount ever discussed was outside the Tribunal" and it was "not a binding agreement". Both asserted that they "did not agree to a twelve (12) month discount for the tenant".
2. Although the above evidence was not provided to the Tribunal, the Appeal Panel grants the landlords leave to rely upon it in the appeal, as it is necessary to properly consider the appeal grounds: Yuen v Thom [2016] NSWCATAP 243 at [17]- [22].
3. Leave is not granted to the tenant to rely upon evidence that was not provided at the Tribunal hearing, as the additional evidence the tenant seeks leave to rely upon as no appropriate basis has been established to consider that material in the appeal (Ros v Commissioner of Police [2020] NSWCATAP 70). However, the Appeal Panel has considered the documentary evidence that the tenant provided to the Tribunal hearing, which she has provided in her appeal documents.
4. The appeal submissions of the parties have also been considered.

1. The grounds of appeal involve one issue. The landlords only challenge order 1, which is the amount awarded for a reduction due to excessive rent under s 44(1)(b) of the RT Act in the amount of $3,978 (a 15% reduction between 1 July 2024 and 30 June 2025).
2. The landlords assert the Tribunal committed an error on a question of law because the landlord's agent had no actual or ostensible authority to make the concession. The landlords further assert the Tribunal made findings of fact without evidence, because the only evidence relied upon to find the rent was excessive was the concession of the landlords' agent.
3. The landlords refer in their submissions to parts of the hearing where they assert the Member made comments they interpret as sceptical of the tenant. The landlords submit that the Tribunal had not found the landlords' failure to keep the residential premises in a reasonable state of repair had caused the mould, as distinct from the actions of the tenant in covering ventilation air-vents in the walls. The landlords further submit there was no basis for a rent reduction because the tenant had not lost the ability to use the second bedroom.
4. The landlords' cite Craig v South Australia (1985) 184 CLR 163; [1985] HCA 58 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 that a finding of fact not supported by any evidence is an error on a question of law.
5. At the appeal hearing, the landlords, in oral submissions, also referred to the High Court decision in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 to support their argument that the agent had no actual or ostensible authority to make the concession.
6. The tenant submits that there was ample evidence to support her claim that the premises had ongoing mould issues that significantly affected her use and amenity of the residence. She denies covering all vents or that she was the cause of the mould issues. The tenant submits that the landlords are bound by the concessions made by the agent at the hearing regarding a rent reduction, citing Crampton v R (2000) 206 CLR 161; [2000] HCA 60 at [15] and _University of Wollongong v Metwally (_1985) 60 ALR 68; [1985] HCA 28 at [7].
7. The landlords do not seek leave to appeal under s 80 and Sch. 4 Cl. 12 of the NCAT Act.

1. Although the landlords only rely on error on a question of law, it is appropriate to set out the scope and nature of internal appeals to the Appeal Panel from decisions of the Consumer and Commercial Division of the Tribunal.
2. 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.
3. 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].
4. What is an error on a question of law was further extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on question of law is an appeal as of right (if established) and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
5. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:

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

1. It is unnecessary for the purpose of this decision to set out all of the examples of an error on a question of law that were discussed in Cusumano.
2. However, a question of law may arise in the circumstances including the following:

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39]; 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 evidence at all to support a factual finding (Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32).

(3) Absence of the jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J))

(4) 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]).

(5) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53]). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

(c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. Ordinarily it is only appropriate to grant leave in matters involving issues of principle or questions of public importance which might have general application, an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision (Collins v Urban at [84]).
3. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally (subject to procedural fairness considerations and the issues discussed in McNeill v Clarence Valley Council [ 2025] NSWCATAP 184 at [185]- [188]) to determine whether a question of law has been raised ( Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

1. There is no dispute that Mr Khan was, at all relevant times, the licensed managing agent of the landlord, pursuant to a binding managing agency agreement.
2. The Appeal Panel has read and considered the transcript of the hearing provided by the parties.
3. During the course of the hearing, the Member clarified what was the position of the respective parties. The tenant made clear that among her complaints was there was significant mould in the premises. She complained about this to the landlords' agent during the course of the tenancy on a number of occasions, and she was seeking a 25% rent reduction as part of her case.
4. Throughout the course of the hearing, the tenant referred to the mould issue (among other repair issues) and her loss of amenity of the premises due to mould.
5. The landlords' agent referred to a 15% rent reduction on multiple occasions. At 28-29 minutes into the hearing, the following was said:

Member: So, let's just go through. So, rent reduction, what do you say about that? I don't want you to present arguments. I just want you to say whether you agree there should be a rent reduction., and if so, whether you agree it should be what this says, or if you say, no, not that, but something else. Okay? Yes, okay. You agree there should be a rent reduction?

Landlords' Agent: Yes. I do. I do agree.

Member: Yes, rent reduction agree. What do you say it should be?

Landlords' Agent: Not 25%.

Member: Okay, what do you say it should be?

Landlords' Agent: 15%

Member: Right, and why do you get 15%? In summary, you'll have an option to present.

Landlord's Agent: Oh, of course. Yeah. Okay. Look, I honestly just belief the rent the tenant is currently paying, or was paying, sorry, is in (sic) market value or actually below market value, sorry. And we are happy to give her 15% due to certain things.

..."

1. At approximately 2 hours and 9 minutes into the hearing, the following was said:

Member: Okay, I think that's...I understand all the claims that you have before me. Is there anything else that you wanted to put to me before we have the respondent the opportunity to speak? Okay.

Landlords Agent: The rent reduction. We disagreed 25%. We're only offering 15%

1. The landlord's agent went on to state that the agent did not agree with the tenant's evidence regarding "bedroom 2" and the loss of amenity of that bedroom due to mould. However, at no point did the agent state the position of the landlord was that the tenant should not be awarded any rent reduction at all.
2. The landlords submit that the agent never had actual authority under the terms of the agency agreement to make any representations about the amount of the rent reduction unless the agent had written authority to do so.
3. The landlords did not provide a copy of the agency agreement. The Appeal Panel cannot determine whether the submission of the landlord's agent was within the scope of the actual authority conferred in the written agency agreement.
4. However, even if the agent did not have actual authority to make representations at the hearing on behalf of the landlords, there was ostensible authority. The legal principles regarding ostensible authority were summarised by the Tribunal in Kumar v SMJ Construction Group Pty Ltd [2024] NSWCATCD 56 at [61]. That analysis included reference to Pacific Carriers v BNP Paribas .
5. A licensed agent of a landlord who appears at a Tribunal hearing and makes representations on behalf of a landlord, including a concession, has ostensible authority to do so. Both the tenant and the Tribunal Member are entitled to rely on such representations and are not bound to made independent enquiries as to whether or not the agent had actual authority or instruction to make the representations.
6. The Tribunal appropriately found on the basis of the landlords' agent's concession at the hearing that the tenant was entitled to a 15% reduction of rent for a 1 year period by reason of the landlord's withdrawal of facilities or services under s 44(1)(b) of the RT Act.
7. In O'Connor v O'Connor [2022] NSWCA 97, the NSW Court of Appeal (Bell CJ; Ward P; and Leeming JA) stated at [65]-[71]:

"65 The role of a court is to decide the dispute presented to it. A concession may relieve the court from resolving that aspect of the dispute, because the effect of a concession is to remove one or more issues from the dispute.

66 It is trite that '[t]he adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel': Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] and that '[e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so': University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; [1985] HCA 28.

67 A concession as to a question of law does not bind the Court. For example, the parties may be agreed that a statute bears a particular meaning, or one of two meanings; in such a case the Court is not restricted to the meanings suggested by the parties. As was said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [89], parties do not have the power, whether by concession or otherwise, to require a court not to apply the law. A recurring example is the agreement of parties that a court has jurisdiction. It is clear that the parties' agreement does not relieve the court from determining for itself that its jurisdiction has been enlivened: see Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [51] and the authorities referred to there.

68 But one question which is very largely left for the parties to formulate is the ambit of their own dispute. It is ordinarily for the plaintiff to identify one or more causes of action on which the plaintiff seeks relief, and it is ordinarily open to the plaintiff, at some later stage, to confine its claim, or indeed to abandon aspects of its claim. In the same way, a defendant may admit aspects of a plaintiff's case. For example, not uncommonly, a defendant may admit liability to a claim, leaving only a contest as to quantum. In such circumstances, the court ordinarily has no role in determining whether the defendant was indeed liable while the concession is in place.

69 When that occurs, the 'real issues' in the proceedings - being the points in issue between the parties to which the obligations in s 56 of the Civil Procedure Act 2005 (NSW) apply - thereby shrink. Indeed, it is open to the plaintiff to renounce its claim altogether, and when the parties are agreed that litigation should be dismissed, then absent some additional requirement (such as leave in the case of a plaintiff under a disability, or in a representative proceeding) the Court will give effect to the concession.

70 On the other hand, if the parties agree that their dispute does extend to a particular issue, then it is ordinarily not for the Court to interfere. As Hayne J put it in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [196]:

'the respondent expressly conceded that the Court could and should entertain the point which is decisive of the appeal. Effect must be given to that concession. It is not a concession about the Court's jurisdiction. That would not bind the Court. But, after Crampton, there is no question about the Court's jurisdiction. The respondent not making the submission that the point now raised was given up by the appellant at trial, or cannot now be raised, it is not for this Court to say of its own motion that the appellant is barred from making the argument.'

71 In the present case, one may pass over the less unequivocal statements in the plaintiffs' opening. By the time of final address, the plaintiffs unequivocally renounced in both their written and oral submissions the possible alternative case formulated the previous Thursday afternoon for their consideration by the primary judge. While that concession remained in place, the primary judge was obliged to proceed on the basis that the plaintiffs' claim was confined in that way. This Court is likewise bound when determining this appeal by way of rehearing. It was and is not open for the proceedings to be determined contrary to the plaintiffs'/appellants' concession while that concession remains in place."

1. The principle that a party is bound by the conduct of their legal representatives at a hearing was recently referred to in Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174 at [36]. There same principles are applicable to a licensed real estate agent representing a landlord at a Tribunal hearing in a dispute under the RT Act.
2. No error on a question of law is established in respect of the finding by the Member that the rent was excessive under s 44(1)(b) of the RT Act due to the ongoing mould issues. The Tribunal was not bound to make its own factual findings on that issue in light of the concession made by the landlord's agent at the hearing.
3. Further, the submission of the landlords that there was "no evidence" to support such an award is rejected.
4. The landlords' submissions selectively extract comments by the Member when the Member was questioning the tenant about the issue of the loss of amenity of the premises and the cause of the mould. The Member stated that the tenant bore the onus of proof. That is an uncontroversial statement. However, the tenant was not bound to prove what the landlords (by their agent) had conceded.
5. The other comments made by the Member were in respect of the covering of vents by the tenant. There was a comment (which was not a finding) in the reasons it was "unknown" what effect that had.
6. However, when the documentary evidence of the tenant is considered in its totality with the oral evidence and submissions of the tenant at the hearing, there was no concession by the tenant that she covered all of the vents. She covered parts of some vents, by reason of ingress of pests. The tenant denied that she had caused inadequate ventilation of the unit. The tenant provided photographic evidence of mould over the course of the tenancy. The tenant provided emails where she had complained to the landlords' agent about the mould issue, and water ingress issues in the unit.
7. Further, the tenant's documentary evidence at the Tribunal hearing contained a quotation and report of Cross City Roofing dated 23 July 2024 to the owners corporation of the strata building. As discussed previously, the unit the tenant occupied was on the top floor. The report relevantly stated:

"Directly above the mould area located in the entirety of the unit we discovered the roof has inadequate ventilation.

Therefore, we quote to install 3 new Whirlybirds to increase ventilation in this ceiling space.

Furthermore, we discovered multiple gaps/cracks in the pointing under the ridges.

Therefore, we quote to re-point all ridges (around 100 ridges) using new Flexipoint and cement (Colour: Red).

Finally, we discovered ALL the gutters were full of leaves and debris.

Therefore, we quote to clear ALL gutters on the roof of leaves and debris (around 74 linear meters).

..."

1. The inadequate ventilation of roof space and multiple gaps/cracks in the pointing under the roof ridges supports a finding that there was ongoing water ingress and inadequate ventilation issues through the roof of the strata building, irrespective whether vents had been partially covered.
2. The landlords' submitted that there was "no evidence" the tenant had lost use of the second bedroom. This submission misconstrues the evidence of the tenant at the hearing. Her evidence was that by reason of ongoing mould issues in the second bedroom, the tenant and her two children slept together in one bedroom, and the second bedroom was not used to sleep in. That is demonstrative of loss of amenity.
3. Considering the evidence provided by the tenant, irrespective of the concession made by the landlords' agent, there was an evidentiary basis to find that the landlord had not kept and maintained the premises in a reasonable state of repair such the rent was excessive under s 44(1)(b) of the RT Act. The principles regarding a 'rent reduction' under s 44(1)(b) of the RT Act are well established: see, for example AL Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 and Mulcair v Callum [2024] NSWCATAP 30. The landlords' duty to conduct repairs within a reasonable period of time upon having notice (actual or constructive) is not dependent upon whether the owners corporation has a duty to repair common property (McCartney v Wood [2023] NSWCATAP 131 at [79]).
4. There was clear evidence to support an order in the tenant's favour under s 44(1)(b) of the RT Act, and the concession of the landlord's agent at the hearing was appropriately made.
5. Although leave to appeal has not been sought, if it had been it would have been refused. There is no basis to grant leave in accordance with the principles set out in Collins v Urban.

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.