Powell v Christensen

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") against orders made in the Consumer and Commercial Division of the Tribunal on 19 and 23 September 2024.
2. The application relates to a dispute under the Residential Tenancies Act 2010 (NSW) ("RTA").
3. There are two applications to the Tribunal relevant to this appeal:

(1) The first, 2024/00106759, was brought by Ms Christensen and Mr Ellington (whom we will refer to as the landlords), represented by Zamoford Pty Ltd (whom we will refer to as the agent). It was lodged on 20 March 2024 and sought an order for payment of $1,165.71 from the rental bond to the landlords.

(2) The second, 2024/00145491, was brought by Ms Powell (whom we will refer to as the tenant) against the landlords, seeking orders including for the reimbursement of out of pocket expenses for repairs and maintenance; reimbursement of excessive rent; compensation for anxiety and physical stress and injuries suffered due to repairs and maintenance; and legal costs.

1. The tenant appeals against two separate decisions of the Tribunal on 19 September 2024 and 23 September 2024.
2. For the reasons set out below, we have decided to allow the appeal in part.

1. The parties entered into a residential tenancy agreement on 16 December 2022 for a fixed term commencing 16 December 2022 and ending on 15 June 2023. Thereafter the tenancy continued as a periodic agreement.
2. The rent pursuant to the agreement was $680.00 per week.
3. The tenant vacated the premises on 5 March 2024.
4. On 20 March 2024 the landlords lodged their application with the Tribunal.
5. On 18 April 2024 the tenant lodged her application.
6. Also on 18 April 2024, the landlords' application was first listed before the Tribunal for a Group List Hearing/Conciliation. Both parties appeared and orders were made for the exchange of evidence in both applications. The Tribunal ordered that the tenant's application be joined to the landlords' proceedings, with the effect that thereafter they were heard together.
7. On 3 May 2024, after application by the tenant, a summons was issued to the agent for the production of documents regarding the tenancy including records of maintenance requests, records of tradespersons, invoices, and property inspection reports.
8. On 6 May 2024, Notices of Hearing in relation to both applications were issued, with the applications listed for hearing together on 9 August 2024.
9. On 7 June 2024, upon application by the tenant, the Tribunal granted both parties an extension of time of around 3 ½ weeks for the provision of evidence and confirmed the hearing date of 9 August 2024.
10. On 17 June 2024 the time for compliance with the summons was extended to 28 June 2024.
11. On 25 June 2024, upon application by the tenant, the Tribunal granted both parties an extension of time of 1 week for the provision of evidence and confirmed the hearing date of 9 August 2024.
12. On 7 July 2024 the Tribunal refused the tenant's application for a further extension of time and adjournment. The Tribunal noted that the agent had failed to comply with the summons.
13. On 12 July 2024 the Tribunal granted the tenant's further request for an adjournment and extension of time, noting that she had provided additional evidence of the 'seriousness of her medical circumstances' and that:

"it's not the case that the proceedings can be indefinitely adjourned nor that time to comply with previous extensions of time can be indefinitely extended."

1. On 15 July 2024 Notices of Hearing in relation to both applications were issued, with the applications listed for hearing together on 23 September 2024.
2. On 19 September 2024 the Tribunal refused a request by the tenant to adjourn the hearing of 23 September 2024. The refusal was recorded in proceedings 2024/00106759, however, both the tenant's application filed on 18 September 2024 and the Tribunal's written reasons record that the adjournment request also related to 2024/00145491. The Tribunal's reasons for refusing the adjournment are outlined below.
3. On 20 September 2024 the tenant lodged a further adjournment request with additional medical documentation.
4. The adjournment request was considered at the hearing of both applications on 23 September 2024. The tenant did not appear, but submitted further evidence in relation to the substantive dispute on the morning of the hearing. The agent appeared on behalf of the landlord.
5. In the tenant's application 2024/00145491 the following orders were made on 23 September 2024:

"1 The application by the applicant Ashleigh Powell, to adjourn the hearing date on 23 September 2024 09:15 AM is refused.

2 The application is dismissed because the applicant failed to appear."

1. The landlords' application 2024/00106759 was heard and the following orders were made on 23 September 2024:

"1 The application by the respondent Ashleigh Powell, to adjourn the hearing date on 23 September 2024 09:15 AM is refused.

2 The Tribunal is satisfied the parties have been notified of today's hearing and had an opportunity to be heard.

3 The respondent did not appear and the Tribunal considers it appropriate to deal with the matter in the absence of the respondent.

4 The Rental Bond Board is directed to pay the applicants Louise Christensen, 355 HIGH Street PENRITH NSW 2750, Wesley Ellington, 355 HIGH Street PENRITH NSW 2750, the sum of $1,165.71, from the Rental Bond number T447340-X.

5 Any balance of the bond is to be paid to the respondent Ashleigh Powell, 18 PRICE Street SOUTH PENRITH NSW 2750.

6 Application 2024/00145491 is dismissed because the applicant failed to appear."

1. In paragraph 30 of its reasons for both applications, the Tribunal stated:

"For completeness, as I am not satisfied that Ms Powell has provided a satisfactory reason for the delay in filing her evidence, leave to rely on late filed evidence is also refused."

1. On 30 September 2024 the tenant lodged a set aside application in relation to 2024/00106759 and a reinstatement application in relation to 2024/00145491.
2. On 1 October 2024 the Tribunal made orders for the exchange of evidence and submissions in relation to the set aside and reinstatement applications. Subsequently both parties filed evidence.
3. On 4 October 2024 the tenant lodged this appeal.
4. On 25 October 2025 the Tribunal dismissed the set aside and reinstatement applications because they had been 'superseded' by the lodgement of the appeal.
5. On 25 October 2024 the Appeal Panel dismissed the tenant's application for a stay of the orders.
6. The appeal was listed for a number of callovers. On 11 December 2024 the Tribunal made orders including:

"7. The Appeal against the order made on 23 September 2024 in proceedings 2024/00145491 is dismissed because the Appellant has withdrawn the Appeal."

1. The Notice of Appeal was lodged by the tenant on 4 October 2024.
2. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules") the application must be lodged within 14 days of the tenant receiving the Tribunal's decision.
3. The Notice regarding the decision of 23 September 2024 was lodged within time.
4. When r 25(4)(b) is read with r 6(2), we are satisfied the Notice regarding the decision of 19 September 2024 was also lodged within time.
5. In the Reply to Appeal, the landlords state that they accept the appeal was lodged within time.
6. Because the appeal against the order made on 23 September 2024 in 2024/00145491 was dismissed, this Appeal Panel may only consider whether there was any error in the decision of 19 September 2024 in relation to both proceedings, and whether there was any error in the decision of 23 September 2024 in relation to 2024/00106759, i.e. the landlord's application.

1. The Notice of Appeal attached a 35 page letter addressed to the Registrar dated 3 October 2024 headed "Grounds of Appeal". We have discerned the following grounds of appeal:

(1) Denial of procedural fairness, including:

(a) "Cutting off medical evidence";

(b) Disregard of medical advice and documentation;

(c) Failure to allow the tenant a reasonable opportunity to present her case without imposing undue burdens such as "excessive medical evidence";

(d) Inadequate time to respond to new evidence;

(e) Discrimination against the tenant due to her disabilities;

(f) Disregard of the health and safety risks of proceeding with the hearing;

(g) The tenant had no capacity to participate in the proceedings;

(h) Failure to allow the tenant additional time to provide her evidence after the landlords provided 375 pages of evidence on 9 August 2024, the date the tenant's own evidence was due to be filed and served;

(i) The landlord had agreed to the adjournment on 19 September 2024 and again on 20 September 2024.

(2) Bias - the Tribunal Member relied on personal assumptions and opinions, made negative comments regarding the tenant's disabilities and favoured the landlord.

(3) Failure to engage with all the evidence, including maintenance records, medical reports and witness statements, over 800 pages of documents and 5 boxes of photographs.

(4) Failure to apply the law correctly including regarding the:

(a) Landlord's obligation under the RTA to repair and maintain the rental premises;

(b) NCAT Act;

(c) Anti-Discrimination Act 1977 (NSW);

(d) Disability Discrimination Act 1992 (Cth);

(e) Relevant case law.

(5) Failure to provide adequate reasons.

(6) Failure to accommodate disabilities.

(7) Failure to investigate obstruction of justice.

(8) Misapplication of the law on evidence production.

1. If successful in the appeal, the tenant seeks the orders of 19 and 23 September 2024 be overturned.

1. In reply to the tenant's grounds of appeal, the landlords state in a letter to the Registrar but attached to the Reply:

(1) The tenant has repeatedly sought adjournments which has unnecessarily drawn out the proceedings.

(2) The landlords have always acted reasonably to address repair and maintenance requests and that any claim to the effect that the premises were uninhabitable or required repairs is "baseless" and the landlord was not obligated to perform the work that the tenant chose to complete at her expense at the commencement of the tenancy.

(3) The tenant vacated on 14 days' notice, but the landlord, as a matter of goodwill only claimed 12 days rent from the bond, being only for the period that the Tenant remained in occupation, rather than insisting on 21 days' notice and claiming unpaid rent for 21 days.

(4) The tenant did not follow procedural requirements and delayed in providing her evidence. The first time the landlords saw her evidence was on the day of the hearing.

(5) Several of the tenant's claims are made outside of time.

(6) The agent did not agree to an adjournment.

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal lodged on 4 October 2024 with attachments.

(2) Tenant's submissions received on 6 February 2025.

(3) Reply to appeal lodged on 24 October 2024.

(4) Landlords' submissions received on 25 February 2025.

(5) The directions made by the Tribunal on the Appeal.

(6) The original orders appealed against.

(7) The original applications appealed against.

(8) The transcript of the hearing on 23 September 2024 provided by the tenant and without objection by the landlords.

1. The tenant provided extensive written and oral submissions based around her grounds of appeal.
2. The landlords' written and oral submissions were focussed on the decision of the Tribunal to award the landlords $1,165.71 from the bond in proceedings 2024/00106759. In brief:

(1) The landlords' claim on the bond was limited to rental arrears;

(2) The payment of rent is a fundamental condition of the lease which is separate to any claims by the tenant;

(3) The rental ledger is an accurate record of all rent paid;

(4) At the end of the tenancy the rent was paid to 22 February 2024; the tenant vacated on 5 March 2025; weekly rent was $680.00; the tenant therefore owed 12 days arrears, a total of $1165.71.

1. In relation to the Tribunal's refusal of the adjournment applications, the landlords referred to the reasons for an earlier refusal by the Tribunal on 12 July 2024, which included:

(1) Proceedings cannot be indefinitely adjourned, notwithstanding the tenant's serious medical circumstances;

(2) The tenant could seek leave to be represented if she is unable to participate in proceedings;

(3) Some of the tenant's claims for compensation are out of time.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80(2) of the NCAT Act:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. The decision to refuse an adjournment is an interlocutory decision of the Tribunal and therefore can be the subject of appeal only by leave of the Appeal Panel (see Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 33 at [56]).

1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17.
2. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal that leave will be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206; (2017) 95 NSWLR 597 at [28].
3. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.
4. Further, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act.
5. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

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

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

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

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

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

1. The decisions appealed against of 19 and 23 September 2024 both make orders refusing adjournment applications by the tenant.
2. The orders refusing the adjournment are based on the Tribunal's consideration of the medical evidence then before it.
3. On 18 September 2024 the tenant emailed the Tribunal, stating relevantly:

"Request for Postponement of Hearing Due to Medical Reasons

I am writing to please formally request a postponement of my upcoming hearing due to significant medical circumstances. This afternoon (18 September 2024), I am undergoing a major operation on my nose functional rhinoplasty surgery at Norwest Private Hospital, which also involves taking donor cartilage from my rib. This surgery requires a hospital stay of a few nights for recovery due to medical complications I have. I have attached medical documentation from the hospital, including post-operative instructions to provide insight into my recovery process.

On 10 July 2024, I informed NCAT of this upcoming surgery and submitted various specialist, doctors reports, medical forms, including a Certificate of Capacity, which outlines that I am not well until 10 October 2024. Both my doctor and specialist have advised that I will require this time for recovery from the two IVF & rhinoplasty surgery. ..

I humbly ask that NCAT please consider my disabilities and the fact that I have recently undergone IVF procedures, which added additional strain to my already challenging situation. Completing tasks takes me significantly longer due to my health limitations, and I sincerely hope for understanding in this matter...

I kindly request that my hearing be rescheduled to after 10 October 2024, giving me time to recover and ensuring that all parties, including the landlord and real estate agent, have ample opportunity to review the substantial volume of evidence that will be submitted. By doing this it will also allow me to be present at the hearing and actively participate in presenting my case, as well as have my witness be there in person and able to testify to the Tribunal if needed."

1. The email listed 7 attachments. They include emails which confirm surgery scheduled for 18 September 2024; emails from psychiatrist Dr Malik; document headed 'Rhinoplasty Post-Operative Instructions'; and Certificate of Capacity.
2. In its reasons for the decision of 19 September to refuse the adjournment, the Tribunal said (emphasis added):

"Yesterday, 18 September 2024, the tenant applied for a further adjournment of both applications which are listed for a 3 hour hearing on 23 September 2024. Her supporting medical records indicate she was undergoing IVF & rhinoplasty (nose) surgery yesterday, 18 September 2024 and would stay in hospital for 1 night. She has re-supplied as part of her evidence a Certificate of Capacity dated 10 July 2024 that she submits deems her unwell until 10 October 2024. An earlier adjournment of the previously allocated 7 August 2024 3-hour hearing for both matters was granted on 12 July 2024 based on updated medical evidence supplied, including the Certificate of Capacity. Whilst the tenant may be unwell or incapacitated in the days immediately following yesterday's operation, it is not clear from the Certificate of Capacity that the tenant will be incapacitated or unwell up to 10 October 2024. Further, the Notice of Hearing for 23 September was sent on 15 July 2024. The tenant has had two months to alert the Tribunal to the fact she may need a longer period than 5 days after her operation on 18 September to recover and participate at the hearing on the 23rd. The last page of the tenant's evidence filed yesterday is a document titled, "How much time do I need off work?" which states:

"As a general rule most people have one week off work. You can go back to work at any time however you may not feel up to it for the first week."

The tenant also says she has not filed her documents which were due 5 weeks ago on 9 August 2024. She says:

"Unfortunately, due to the immense printing demands, I ran out of ink, staples, and plastic sleeves, which delayed my ability to submit the materials before my surgery. My friend is kindly assisting with obtaining these supplies, and I will be able to submit the completed folders and evidence either tomorrow or Friday."

If the tenant is able to finalise her documents on the day immediately following her surgery, then the inference is she cannot be so unwell that she cannot attend the hearing on 23 September.

The tenant has been granted three extensions of time to file her documents since the initial 18 April 2024 timetable directed she file them by 7 June 2024. She did not apply for a (fourth) extension prior to 9 August and they have still not been filed.

The tenant is to immediately file her documents. No further extensions will be granted as the tenant has already been given 5 months to do so.

The Tribunal is prepared to accept the tenant will be unwell for a short period of time after yesterday's operation, but is not prepared to grant any further adjournments of this matter.

If there is evidence that has already been filed showing incapacitation up to 10 October, the tenant should supply that.

Both matters remain listed on 23 September at 9.15am."

1. The Certificate of Capacity was dated 10 July 2024. It was completed and signed by Dr Igbojiaku. The Certificate states that it was for "use with workers compensation and Compulsory Third Party (CTP) motor accident injury claims".
2. It is not disputed that the tenant sustained injuries in a motor vehicle accident in 2019.
3. The Certificate states relevantly:

"Diagnosis of work related/disease or motor accident related injury(ies)

MVA multiple trauma. Extensive Pelivs fractures. Lower back. Bladder, R + L knees. R arm. Shoulder & wrist, R foot drop, Broken nose, Sciatica, PTSD & Depression.

Having another IVF egg harvesting procedure in August, taking DHEA & Melatonin scripted by IVF Specialist to assist with fertility & stress. Rhino-septoplasty surgery booked for 18 Sept 2024. Surgery for R Shoulder Rotator Cuff Tear & R Wrist to be had after recovered from nose (late 2024). Having pain in L & R knee, monitoring pain. L knee requires repeat of PCI. Reconstruction surgery as per specialist. Having increased pain in both hips, had cortisone injection into L Hip, monior R Hip pain. Gained weight but lost 3kg with help of Nutritionist, need to monitor. Having increase pain in feet & lower back, referred to Podiatrsit due to uneven legs, waiting for insurer approval. Need to recommence physiotherapy. To see Chriopractor & Massage Therapist for back & global pain. Taking multiple medications, speaks Psychologist weekly & Psychiatrist monthly. EMDR/NCR therapy to be considered + Chronic Pain program.

Ashleigh recently had IVF Egg harvesting procedure due to low AMH & premature menopause. She's had 4 x to date and needs to repeat this procedure in August due to low egg count. She's having ongoing pain in her L knee & twisted her R knee recently, pain is manageable but monitoring, as per specialist she will be required to repeat L Knee PCL reconstruction surgery in the future. Having pain in R Shoulder & R Wrist, surgery required, experiencing headache knee Having pain in R shoulder & R wrist, surgery required, experiencing headaches & tightness in her neck & back. Still symptomatic with nose, her Specialist scripted Pulmicort for sinus rinses, surgery is booked for Sept. Having pain in both her hips, just had a cortisone injection into her L Pelvis. R hip has traumatic secondary osteoarthritis, specialist confirmed a hip replacement is required, but will be guided by patient's pain for when this is to happen. Having pain in feet & back, referred to Podiatrist due to uneven legs & instability ... Need to recommence Physiotherapy. Began seeing Nutritionist and lost approx 3-4 kg, keep monitoring. See Chiropractor & Massage therapist for help pain in neck, back, hips & knees. Mental health has been affected, anxiety, overwhelmed, nightmares, flashbacks & fatigued. Working with Psychologist & Psychiatrist, taking Melatonin to assist with stress for IVF procedure coming up."

"has no current capacity for any work from 10 July 2024 to 10 October 2024."

1. The document the Tribunal referred to as "How much time do I need off work?" is the document headed "Rhinoplasty - Post Operative Instructions" by ENT surgeon Dr D Soovin. The relevant extract states in full, with emphasis added:

"As a general rule most people have one week off work. You can go back to work at any time however you may not feel up to it for the first week. It's better to stay at home for the first two weeks if possible, until the splints are removed."

May the tenant have suffered a substantial miscarriage of justice?

1. We consider that the Appeal Panel's discretion to grant leave is enlivened in the circumstances of this case because the Tribunal's decision to refuse the adjournment was against the weight of evidence and was not fair and equitable:

(1) Although the Certificate was prepared for use with the tenant's insurance claim and does not explicitly refer to the Tribunal proceedings, on an objective reading, it was persuasive evidence that Ms Powell had no capacity for any work up to 10 October 2024, and which, on any reasonable interpretation, would include her preparation for and attendance at the hearing;

(2) The Certificate identifies the tenant's medical diagnoses, symptoms and treatment in detail, so as to justify the conclusion that she has no capacity to 10 October 2024 (see Waters v Waghorn [2016] NSWCATAP 247 and the authorities cited therein);

(3) The Tribunal did not advert to the relevant Post Operative Instructions that the tenant should stay home for two weeks after the operation i.e. until 2 October 2024;

(4) Given this medical evidence, it was not reasonably open to the Tribunal to draw the inference that "If the tenant is able to finalise her documents on the day immediately following her surgery, then ... she cannot be so unwell that she cannot attend the hearing on 23 September."

(5) The Tribunal's decision to refuse the adjournment was based on the erroneous understanding that the tenant had not already filed evidence showing incapacitation up to 10 October 2024.

1. We are satisfied the tenant may have suffered a substantial miscarriage of justice because, had the Tribunal properly considered the medical evidence before it, there was more than a significant possibility that it would have adjourned both applications to a date after 10 October 2024 when the tenant could have participated in the proceedings (see s 38(5)(c) NCAT Act).

Should we exercise our discretion and grant leave to appeal?

1. Nevertheless, for the following reasons, in the exercise of our discretion we grant leave to appeal only in part.
2. As per Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]:

"the concern of the law is to avoid practical injustice."

1. Thus, there is no utility in granting leave to appeal if it is clear that, should the appeal be allowed and the application remitted for redetermination, the ultimate outcome would not be any different.
2. Support for this view may be found in in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] where, when considering errors including questions of procedural fairness, the High Court referred to the need for there to be:

"a realistic possibility that the decision that was made in fact could have been different if the error had not occurred."

1. The landlord's claim is limited to rent arrears for a 14 day period at the end of the tenancy.
2. The Tenant Payment History relied on by the landlord evidences that:

(1) The tenant vacated on 5 March 2024;

(2) Rent was last paid on or about 16 February 2024, taking payment up to 22 February 2024;

(3) Rent was $680.00 per week.

1. On the face of the ledger, the tenant therefore owes 12 days rent, a total of $1,165.71.
2. There was no evidence before the Tribunal, nor the Appeal Panel, to contest the accuracy of the ledger, including the date of vacant possession and the date rent was paid to.
3. When asked by the Appeal Panel for the basis of disputing the landlord's claim, the tenant replied:

"A landlord cannot enforce a contract unless they adhere to it."

1. Similarly, the tenant said in oral submissions:

"The landlords cannot enforce a contract which they breached themselves."

1. These submissions disclose a fundamental misunderstanding about the obligations of parties to a residential tenancy agreement: it is a contract under which the payment of rent to the landlord is an essential term, independent of any obligations owed to the tenant.
2. In other words, even if the landlords had breached a duty including to repair and maintain the premises, causing the tenant foreseeable loss, mindful, as we have noted below, that any claim for a reduction or reimbursement of rent paid because the rent was excessive is out of time, this would not defeat or offset the landlord's entitlement to the rent.
3. We conclude that even if we grant leave, allow the appeal and remit the landlord's application for redetermination, the outcome would be the same: being a finding that rent of $1,165.71 was owing by the tenant to the landlord and an order that the sum of $1,165.71 be paid from the rental bond to the landlords, with the balance to be paid to the tenant.
4. We therefore refuse leave to appeal regarding the orders in 2024/00106759 of 19 September 2024 and dismiss that part of the appeal.

1. One of the orders sought by the tenant in her application is "Reimbursement of excessive rent paid during the Tenancy".
2. The tenant's written submissions to the Tribunal (which appear on page 476 of her submissions to the Appeal Panel) indicate that she seeks a rent reduction for the maximum 12 month period due to the landlords' withdrawal of goods, facilities and services, with reference to s 43 of the RTA.
3. However, the tenant's claim was lodged after the end of the tenancy. Pursuant to s 44(3) of the RTA, a claim for excessive rent may be made before the end of the tenancy.
4. Therefore, the tenant's claim for excessive rent must inevitably be rejected because it is out of time (see, eg, Torpey v Stewart [2021] NSWCATAP 248 at [57]- [59] where the Appeal Panel did not disturb the Tribunal's conclusion that an excessive rent application lodged after the tenancy ended would be out of time; AL Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 at [101]).
5. The time limit in s 44(3) is jurisdictional in nature and the Tribunal does not have power to extend time to bring such an application.
6. We therefore refuse leave to appeal and dismiss the appeal regarding this component of the tenant's claim.

1. The tenant also sought orders for compensation for economic and non-economic loss. Such orders depend on the tenant proving a breach by the landlords of their obligations under the RTA, including to repair and maintain the premises pursuant to s 63.
2. The combined effect of s 190(1) of the RTA and r 39(9) of the Residential Tenancies Regulation 2019 (NSW) is that a landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within three months after the applicant becomes aware of the breach. The focus is on the time the applicant becomes aware of the breach.
3. The chronology which was before the Tribunal (and which appears from page 264 of the tenant's appeal documents) indicates that the tenant first became aware of breaches by the landlords of s 63 at the commencement of the tenancy in December 2022. Throughout 2023 and 2024 the tenant made numerous notifications to the landlords of repairs she contends were necessary.
4. If any of the alleged breaches continued to the end of the tenancy, the tenant's application would be within time in respect of the 3 month period prior to 18 April 2024 when her application was made: see, eg, Charrouf v NSW Land and Housing Corporation [2023] NSWCATCD 109.
5. However, for any breach earlier than that 3 month period, the tenant would require an extension of time pursuant to s 41 of the NCAT Act to bring her claim for compensation.
6. The relevant factors for the Tribunal to consider when deciding whether to extend time were identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] and include the length of the delay, the reasons for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
7. While the tenant did not provide written submissions to the Tribunal in support of an extension of time, there was extensive documentation before the Tribunal regarding the alleged breaches by the landlords. There was also extensive medical documentation which might explain the tenant's reason for the delay in lodging her application. Such documents may have supported any oral submissions made by the tenant at a hearing when the issue of an extension of time was raised.
8. We conclude that, had the Tribunal correctly considered the evidence regarding the adjournment application and granted the adjournment, there is a realistic possibility that the tenant's claim for compensation would not have been dismissed.
9. In other words, the error of the Tribunal in refusing the adjournment was material to the outcome of the tenant's compensation claim. This worked an injustice which is reasonably clear and in the exercise of our discretion we grant leave to appeal regarding the tenant's application for compensation and allow the appeal.

1. The tenant also sought orders for an investigation into breaches and misconduct by the landlords and agent. We refuse leave and dismiss the appeal regarding that component of the application because the Tribunal does not have jurisdiction to make such orders.

1. As noted above, it is only the landlord's application which is the subject of the appeal of the decision of 23 September 2024.
2. Arguably, the decision to refuse the tenant the adjournment on 23 September 2024 created a greater likelihood of a substantial miscarriage of justice than the decision on 19 September 2024.
3. This is because additional evidence was before the Tribunal on 23 September 2024, specifically a letter addressed to the Tribunal from Dr Igbojiaku dated 10 July 2024 which accompanied the Certificate, and a Medical Certificate from Dr Soodin dated 20 September 2024.
4. Both documents provided further details of the tenant's diagnoses, her symptoms and the extent to which her impaired health impacted her preparation and participation in the proceedings.
5. However, for the same reasons regarding the decision of 19 September 2024, even if we were to grant leave, allow the appeal and remit the landlord's application for redetermination, the outcome would be the same.
6. In other words, the decision refusing the adjournment on 23 September 2024 was not material to the ultimate decision to pay the landlord part of the bond.
7. We therefore refuse leave to appeal regarding the orders in 2024/00106759 of 23 September 2024 and dismiss the appeal.
8. As we understand her submission at the appeal hearing, the tenant was mistaken or confused when, on 11 December 2024, she withdrew her appeal against the order made on 23 September 2024 in her application 2024/0014549.
9. Be that as it may, it is not open to us to set aside the withdrawal because the tenant has not appealed the orders of 11 December 2024.

1. We will therefore allow the tenant's appeal in respect of the 19 September orders refusing the adjournment application in part, to the extent that it relates to her claim for compensation.
2. The effect of the Tribunal erring by refusing the adjournment application on 19 September is that the matter remained listed on 23 September, at which time the Tribunal, in the absence of the tenant, refused a further adjournment application (including in respect of the tenant's compensation claim) that had been made in writing and proceeded to hear all matters in the absence of the tenant and then dismiss the tenant's claim, including the claim for compensation.
3. However, as noted above, an application for the matter to be reinstated because it was heard in the tenant's absence was dismissed on 25 October 2024, and an appeal against the orders made on 23 September 2025 was withdrawn, albeit, it seems inadvertently.
4. In considering the orders to be made, we are mindful that:

(1) If the adjournment had been granted on 19 September, the matter would not have proceeded on 23 September in the tenant's absence; and

(2) Section 81(1) of the NCAT Act provides that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed -

(b) the decision under appeal to be confirmed, affirmed or varied - the decision under appeal to be quashed or set aside -

(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it -

(d) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. The orders that we consider appropriate in light of our decision that the Tribunal erred in refusing the adjournment on 19 September 2024 and that the application for an adjournment ought to have been allowed, are that:

(1) The decision on 19 September 2024 to refuse the adjournment in respect of the tenant's compensation claim ought to be quashed or set aside;

(2) The order made on 23 September 2024 dismissing that part of the tenant's application for compensation should also be quashed or set aside.

(3) The appeal be otherwise dismissed.

1. It follows from the above that there is no utility in considering the other grounds of appeal raised by the tenant, including bias, discrimination and 'failure to engage with all the evidence'.
2. Even if the Appeal Panel was persuaded on other grounds that the tenant may have suffered a substantial miscarriage of justice, the appeal regarding the landlord's application and regarding the tenant's claim for excessive rent would fail for the same reasons: that the refusal of the adjournment did not have a material impact on the ultimate outcome.

(1) Leave to appeal is granted in part;

(2) The appeal is allowed in part;

(3) The orders made by the Tribunal on 19 September 2024/00145491 to refuse the tenant's application for an adjournment of her claim for compensation are set aside;

(4) The orders made by the Tribunal on 23 September 2024 in the absence of the tenant to refuse the tenant's further adjournment and dismiss the tenant's application, in so far as those orders concerned the tenant's compensation application, are also set aside;

(5) The tenant's application for compensation is remitted to the Tribunal, differently constituted, to be determined in accordance with the law and with such further evidence as the Tribunal decides;

(6) The appeal relating to 2024/00145491 and 2024/00106759 is otherwise dismissed.

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