Ramos Miguel Pty Ltd v Tinoco

I am seeking compensation for financial losses and damages incurred due to the uninhabitable condition of the property located at 7/108 Mount Street, Coogee. Specifically: Compensation for the cost of the mold inspection report: I incurred an expense of $2,750 to obtain a specialist mold report, which confirmed the property was uninhabitable due to severe air contamination and mold infestation. Compensation for the loss of personal belongings: Many of my belongings, including furniture, were damaged beyond repair due to mold contamination. I provided a detailed list of these losses to the landlord/agent but received no response. Compensation for stress and inconvenience: The unsafe living conditions and lack of action from the landlord/agent caused significant disruption and stress to my family, including my infant daughter. Despite repeated complaints since May, the landlord/agent failed to take any steps to address the mold issue, violating their obligation to provide a safe and habitable property. I request that NCAT orders the landlord/agent to compensate me for the above losses.

(typographical errors as in original)

The property at ..., Coogee, was deemed uninhabitable due to severe mold contamination, as confirmed by a professional inspection conducted by Mould Pro. This situation caused significant stress, financial loss, and health risks, especially to my infant daughter. The mold issue was first raised in May 2024 and formally reported via email on May 27, 2024. Despite these complaints, no action was taken by the landlord/agent to address the problem. On July 18, 2024, I received a professional mold inspection report from Mould Pro, which confirmed extremely high levels of mold spore contamination in multiple areas of the apartment, rendering it uninhabitable. Based on this report, I was forced to vacate the apartment the following week for the safety of my family. Key findings from the report included: Mold contamination in the bedrooms, kitchen, and bathroom. High humidity and condensation contributing to microbial growth. Contamination of furniture and surfaces due to elevated mold spore levels. Recommendations for immediate evacuation of the property until proper remediation was completed. I incurred $2,750 for the mold report and lost several personal belongings due to contamination. Despite providing a detailed list of the discarded items and photographic evidence, the landlord/agent failed to respond or offer any resolution. The landlord/agent's negligence in addressing the mold issue over several months, combined with their refusal to take responsibility or cover costs, violated their obligation under NSW tenancy laws to maintain a habitable property. I request NCAT to order compensation for my financial losses, including the cost of the mold report and the damaged belongings, as well as recognition of the emotional distress caused by their inaction.

(typographical errors as in original)

1. A hearing was held on 12 June 2025, and the Primary Decision published on 15 June 2025.

1. The landlord filed a Notice of Appeal on 4 July 2025. That is not within the time provided by r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). The effect of the r 25(4)(b) is that internal appeals in respect of "residential proceedings" must be filed within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). The landlord says that it received the Primary Decision on 16 June 2025. Therefore, the appeal needed to be filed by 1 July 2025. However, it was filed on 4 July 2025, that is, three days late.
2. We will return to this point later in these reasons.
3. The Notice of Appeal requires the landlord to set out the orders challenged on appeal. Instead of doing so, the landlord lists paragraphs [23], [33], [52], [54]. [67] and [69] of the Primary Decision together with a brief commentary. The landlord states:
   • par [23] - extension of time granted;
   • par [33] - tenant opened the windows;
   • par [52] - repairs made had no impact;
   • par [54] - no evidence of this;
   • par [56] - zero receipts provided;
   • par [56] - no clear way of working out depreciation;
   • par [67] - this was not proven at all;
   • par [69] - the expert report clearly states there was no structural issue.
4. The landlord's grounds of appeal are then stated as (numbering added for ease of reference):

[1] The Tribunal failed to take into account the one week of free rent given to the tenant. This was not mentioned at all.

[2] The expert report clearly states that the property suffered from no structural issue, this is not taken into account by the Tribunal.

[3] There is no receipts provided, the basis for depreciation is invalid.

1. These grounds appear to extend into the next section "Orders the NCAT Appeal Panel should Make" which section commences with (continuing the added numbering):

[4] The Tribunal does not explain depreciation in its verdict.

[5] The Tribunal member was arguing the case on behalf of the tenant, they were biased and discriminatory.

[6] No evidence provided for stress and inconvenience.

1. Then the landlord addresses the orders it seeks, which it states as:

To reverse and cancel out details of the Money order made on 12/06/2025.

1. The landlord then submits that the Primary Decision was not fair and equitable (which we will call Ground 7) because (numbering added):

[1] This matter should not have been allowed to be heard in the first place. It is grossly out of date. The tribunal states that the inconvenience was 'minor'. The tenant was given one week free rent is compensation. They were clearly explained this, and this fact was not taken into consideration.

[2] The property suffered from 'No' structural damage. This was evidence by the experts report.

[3] In the Tribunal's verdict [?], it states that the property may have had some structural defect based on what??

[4] The tenant at no point provided any evidence that the property was structurally defective.

[5] The issue of mould was caused due to non-ventilation of the property, as evidence by the expert report, builders assessment and the new tenant. The cause of the problem has always been non-ventilation, the tenant admitted to not opening the windows.

(typographical errors as in original)

1. The landlord then submits that the Primary Decision was against the weight of the evidence (which we will call Ground 8), the evidence at the hearing being (numbering added):

[1] expert mould report attributing mould growth due to 'non-ventilation'

[2] expert report stating mould growth not due to structural defect

[3] expert builder report

[4] new tenant statement

[5] tenancy ledger showing tenant was given 1 week free.

1. The landlord submits that the Tribunal should have given more weight to all that evidence and asks rhetorically:

If the mould problem was due to a structural defect, how come it was not observed in the months prior and after??

1. Finally, the landlord says that significant new evidence is now available that was not reasonably available at the time of the hearing. We will refer to this as Ground 9. That evidence was evidence from the current tenant stating that they have not experienced any mould issue, any structural defect and that they keep the property properly ventilated.
2. Attached to the Notice of Appeal is the Primary Decision, a certificate issued under s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and the new evidence the landlord wished to rely on at the appeal, being evidence that was not before the Tribunal namely: an email from one of the two new tenants dated 3 July 2025 to the landlord's agent; the first page of a residential tenancy agreement dated 3 December 2024 with the new tenants, and a condition report dated 3 July 2025.

1. On 25 August 2025, the landlord filed a 171 bundle of documents relevantly being its evidence before the Tribunal, "new evidence" sought to be relied on (pp 147-159) and the report of the tenant's expert MouldPro dated 18 July 2024.[1]

1. The tenant filed a Reply to Appeal on 22 July 2025.
2. The tenant says that she supports the orders made by the Tribunal which the landlord challenges for reasons other than those given by the Tribunal. The tenant submits that:

I support the original orders made by the Tribunal. In addition to the reasons given by the Tribunal, the following facts further justify the decision:

My Fair Trading application was submitted within time - supported by official documents.

The landlord took no action or inspection between April and July, despite being aware of the issues.

I always kept the windows open for ventilation due to lack of air conditioning and to protect my newborn child.

I never received any rent-free week - I paid until the final day.

MoldPro's report was credible and backed by independent lab testing. The appellant refused cross-examination but now attacks the report without basis.

They made several false statements during the appeal that were already discussed or disproven at the hearing.

(typographical and other errors as in original)

1. In reply to the landlord's grounds of appeal, the tenant states:

Miscarriage of justice / Tribunal didn't assess all factors

The Tribunal considered all evidence fairly, including expert reports, documents, and oral testimony. No miscarriage occurred.

2. No structural issue

The decision was based on uninhabitable conditions caused by mould, not structural damage.

3. No receipts or depreciation basis

The Tribunal accepted the losses based on my testimony and photos. Full receipts are not always available for used items.

4. New evidence due to seasonal change

The appellant had time to present evidence during the hearing. Bringing it now is not valid.

5. Mould caused by lack of ventilation

False. I always opened windows for airflow. The property had no ventilation system, and I had a newborn baby. This was addressed at the hearing.

(typographical and other errors as in original)

1. The tenant states that the landlord requires leave to appeal and that she opposes leave being granted for the following reasons:

The appellant does not raise any legal error. The appeal simply repeats factual arguments already examined and rejected by the Tribunal. The decision was based on clear evidence, including:

The MoldPro expert report, supported by independent lab results;

Fair Trading documents confirming my application was within time;

Photographic evidence and my oral testimony;

The appellant's failure to act despite being aware of the issues since April.

The appellant chose not to cross-examine the expert at the hearing and now attempts to discredit the report without any contrary evidence. Several claims made - including that I didn't ventilate the unit or received rent-free weeks - are false and were addressed during the hearing.

There is no legal basis for this appeal. Granting leave would only cause delay and undermine a fair and well-reasoned decision.

I respectfully request that leave to appeal be refused.

(typographical and other errors as in original)

1. There are two preliminary matters to consider.
2. The first preliminary matter is whether the appellant requires an extension of time for filing the Notice of Appeal. As one of the factors to take into account in considering whether to extend time is the strength of the appeal, we shall deal with this issue having considered the merits of the appeal itself.
3. The second preliminary matter is whether any party should be allowed to rely on the material that was not before the Tribunal.
4. We shall deal with that matter immediately.

1. The usual authority in these applications is Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk), where the Appeal Panel stated:

23 ... the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. ...

25 Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.

26 In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.

(emphasis added)

1. The additional material the landlord wishes to rely on are the following three documents:

(1) pages 1 and 2 of 25 of a residential tenancy agreement between the landlord and its new tenants dated 3 December 2024;[2]

(2) an email from his new tenant to his property manager dated 3 July 2025;[3]

(3) pages 1 to 8 of 8 of a condition report for the property dated 3 July 2025.[4]

1. Only document (1) was available at the time of the Tribunal hearing on 12 June 2025. In its Notice of Appeal, in answer to the question "Why was this evidence (including documents) not available at the time of the hearing?", the landlord states:

We have entered into winter months, and evidence can now be obtained.

Attached copy of their lease agreement, and routine inspection report dated 03/07/2025.

1. This is not an adequate explanation as to why the residential tenancy agreement with the landlord's new tenants. Applying the test in Al-Daouk, we would not grant leave to the landlord to rely on this document.
2. As to documents (2) and (3), the test in Al-Daouk is not applicable as this evidence could never have been available at the time of the hearing. This is entirely new evidence post-dating the Tribunal hearing.
3. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

(emphasis added)

1. Again, we would not grant the landlord leave to rely on these documents.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique). Relevantly, the Appeal Panel stated:

35 It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal.

36 Commonly, that will be wrong.

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

38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.

40 In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law.

(emphasis added)

1. That said, in circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to approach the issue by looking at the grounds of appeal generally, and to determine for itself whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent to the appeal: Prendergast at [12]. Also see the various authorities on this issue referred to in Unique at [28].
2. We have examined the appellant's materials and discussed this issue at the hearing. It appears to us that the landlord has raised a number of questions of law being the following:
3. First, the Tribunal was biased: see Unique at [32](3).
4. Secondly, orders were made for which there was no evidence: Prendergast at [13](7).
5. It is convenient to deal with both these grounds (being Grounds 5 and 6 as identified above) immediately.

1. As the Appeal Panel stated in Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 at [18]:

Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]. Mr Saurine has not articulated whether his claim is one of actual bias or apprehended bias. Claims of actual bias are rarely made, and even more rarely upheld. Actual bias usually, but not universally, contemplates an "interest" (whether financial or otherwise) by the judicial officer (in this case the Tribunal member) in the outcome of the proceedings.

1. No such claim is made in this appeal. In the circumstances, we assume that the landlord is suggesting apprehended bias, in the sense of pre-judgment by the member of his application, arising of a result of the member's remarks during a hearing ("the Tribunal member was a arguing the case on behalf of the tenant").
2. Such matters are usually demonstrated by providing a transcript of the Tribunal member's remarks, or, at the very least, the actual sound recording of the proceedings. The landlord has not provided either.
3. In the circumstances, we would not allow the appeal in respect of this ground.

Ground 6: Orders were made for which there was no evidence

1. The landlord submits that no evidence was provided for the Tribunal's findings that the tenant has suffered stress and inconvenience. We reject that submission. At [77] of the Primary Decision, the Tribunal explicitly refers to the tenant's correspondence to the landlord as forming part of the basis for the findings of stress and inconvenience, and further accepted that the claim was "particularly acute given the tenant's child ... resided in the premises".
2. In the circumstances, we would not allow the appeal in respect of this ground.

1. Sometimes, the adequacy of the Tribunal's reasons can raise a question of law. However, as the Tribunal stated in Unique at [38]:

a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

1. We consider that to the extent that the landlord raises the adequacy of the Tribunal's reasoning, this is simply an attack on the merits of the Primary Decision, does not raise a pure question of law and is more appropriately dealt with as an appeal ground for which leave is required.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

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

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

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. As the Appeal Panel stated in Unique:

41 Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.

42 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. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. (Citations omitted)

43 Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice." (Citation omitted)

(1) Hungry Jack's was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9].

1. We turn now to the landlord's grounds of appeal which require leave.

Ground 1: The Tribunal failed to take into account the one week of free rent given to the tenant.

1. The landlord submits that "this was not mentioned at all". That submission is incorrect. The issue was explicitly dealt with by the Tribunal at [28] and [29] of the Primary Decision.
2. Even if we were satisfied that Tribunal had not considered this issue, we would not have granted leave in respect of it, in accordance with Collins v Urban.

Ground 2: The expert report clearly states that the property suffered from no structural issue, this is not taken into account by the Tribunal.

Ground 3: There is no receipts provided, the basis for depreciation is invalid.

Ground 4: The Tribunal does not explain depreciation in its verdict.

1. These grounds can be dealt with together.
2. As to there being no receipts, true it is that no receipts were provided by the tenants for his mould-affected goods. This is not uncommon. But the Tribunal clearly accepted the tenant's oral evidence on this issue, stating at [76] of the Primary Decision:

The Tribunal is satisfied with the oral evidence given by the tenant as to the approximate time the goods were purchased, the costs of the items including bank statements, a list prepared by the tenant including a comparable list of new items claims and photographs taken by the tenant. The depreciation applied by the tenant is also reasonable and aligns with the ATO depreciation rates. The Tribunal allows this claim to a total of $3,008.40.

1. As to the Tribunal not explaining depreciation, we do not understand this submission. The fact that the Tribunal allowed for depreciation of the tenant's goods worked in favour of the landlord, whose liability was lessened by reason of depreciation that "aligns with the ATO depreciation rates".
2. We see no error by the Tribunal on any of these grounds and we would not grant leave to appeal in relation to these issues.

Ground 7: The Decision was not fair and equitable

1. The landlord's submissions on this issue appearing in the Notice of Appeal are set out above. There are five components.

1. The first component is that the Tribunal application was filed out of time, the landlord submitting that "this matter should not have been allowed to be heard in the first place. It is grossly out of date".
2. This issue was extensively considered by the Tribunal at [13] to [30] of the Primary Decision.
3. At [14]-[20] of the Primary Decision, the Tribunal identified the correct and applicable legislative provisions namely s 190 of the Residential Tenancies Act 2010 (NSW),[5] reg 39(9) of the Residential Tenancies Regulation 2019 (NSW),[6] s 41 of the NCAT Act[7] together with the principles[8] and relevant authorities[9] dealing with extensions of time.[10]
4. At [14]-[20] of the Primary Decision, the Tribunal then summarises the evidence before it, stating at [22] that:

22. The length of the delay is a little over 3 months, the Tribunal considers this is not significant in the circumstances of this claim. Further, in that time, reasons provided were that he had communicated with the landlord and put them on notice and took his complaint to Fair Trading (believing it to be the correct forum). The tenant's evidence was, summarily put, that he:

(a) Made a complaint to the respondent's agent by phone call and email on 27 May 2024 shortly after he became concerned that it was a persistent problem that he could not rectify.

(b) Further communication by phone call and emails on 2 July 2024 and 11 July 2024.

(d) Further email communication and telephone communication occurred with the respondent immediately after.

(e) On 18 July 2024, the tenant emailed the respondent enclosing the mould report (outlining the main points of the report that included the requirement for immediate evacuation) and enclosing a list of the damaged items that he had to discard.

(f) Vacated the property on 26 July 2024

(g) On 14 August 2024 sent an email to the landlord's agent:

(i) again detailing that they had had a mould inspection conducted

(ii) sought reimbursement for the costs associated with the inspection and items discarded (with a list of estimated values and offered to provide photos)

(iii) sought clarification as to whether the landlord had been informed and what actions were being taken.

(h) A formal complaint was made to the NSW Fair Trading on 27 August 2024 (reference no. 11307541) with a reply on 4 September 2024.

(i) Application made to NCAT on 21 November 2024.

1. At [23], the Tribunal then granted the extension of time for the following reasons:

(i) The length of the delay, 3 months was not significant in the circumstances of the case.

(ii) The delay was reasonably explained.

(iii) The tenant had put the respondent on notice of the complaint of mould issue, the dispute and claim for compensation at all relevant times.

(iv) The tenant took action and had the property inspected and a report obtained.

(v) The tenant vacated the property due to his concerns of health and safety and notified the respondent's agent of this intention.

(vi) The tenant sought re-dress from Fair Trading and then NCAT after becoming aware that it was not the appropriate forum.

(vii) The tenant has an arguable case and there is merit in this application.

(viii) The matter involves an alleged serious health and safety issue and an expert report was obtained and is relied upon.

(ix) The alleged breach remained continuous and was not remediated prior to the tenant.

1. At [24], the Tribunal then considered the issue of prejudice to the landlord, the being argument put by the landlord that the landlord gave the tenant one week's free rent after the tenant vacated and that it would not have done so had they been aware that the tenant was making a claim. At [25], the Tribunal noted that the tenant disputed he had been given a week's free rent.
2. In the circumstances, at [28], the Tribunal found that that there was no prejudice to the landlord by reason of the extension of the limitation period, even if one week's rent was not sought.
3. We see no error in the Tribunal's consideration of its decision to grant the extension of time to the tenant. We were not persuaded by the landlord's written submissions or the oral submissions of his agent Mr Khararoo.
4. It follows we would not grant the landlord leave to appeal in respect of this issue.

[2] The property suffered from 'No' structural damage.

1. The landlord submits that the property suffered from no structural damage, and that this was evidenced by the expert's report. The landlord submits that the Primary Decision states that the property "may" have had "some structural defect", and asks rhetorically, based on what?
2. We do not understand this submission and were given little assistance from the landlord.
3. The only reference in the Primary Decision (which was 78 paragraphs in length), to the word "structural", appears at [52] where the Tribunal states:

... The Tribunal was not advised as to what repairs were carried out and whether such repairs affected the ventilation or structural issues of the property.

[3] In the Tribunal's verdict [?], it states that the property may have had some structural defect based on what??

1. This is simply a rhetorical question, perhaps going to the adequacy of the Tribunal's reasoning.

[4] The tenant at no point provided any evidence that the property was structurally defective.

[5] The issue of mould was caused due to non-ventilation of the property, as evidenced by the expert report, builders assessment and the new tenant. The cause of the problem has always been non-ventilation, the tenant admitted to not opening the windows.

1. This is an assertion of the landlord, and not a proper ground of appeal.
2. Even when the five components are considered cumulatively, we see no substance in this ground of appeal would not grant the landlord leave to appeal in relation to Ground 7.

Ground 8: The Decision was against the weight of evidence

1. The landlord's submissions on this ground, as set out in the Notice of Appeal, are reproduced above.
2. We see no substance in this ground of appeal would not grant the landlord leave to appeal in relation to Ground 8.

Ground 9: Significant new evidence is now available that was not reasonably available at the time of the hearing

1. As we have rejected the landlord's application to rely on new evidence, this ground of appeal must fail.

1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. As the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221:

38. ... Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).

39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.

1. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website):

... an appeal is not an opportunity to have a second go at a hearing.

1. We consider that the landlord is seeking to challenge findings of fact and reasoning that were clearly open to the Tribunal on the available evidence. Even if a ground for leave to appeal had been established, we would not have granted leave to appeal as we would not have been satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. Thus, the application for leave to appeal has no merit.

Extension of time in which to file Notice of Appeal

1. As noted above, the Notice of Appeal was filed three days late, and thus the appellant needs an extension of time in which to file the Notice of Appeal.
2. Unless the Tribunal grants an extension under s 41 of the NCAT Act, an internal appeal such as this one must be lodged, within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): NCAT Rules, r 25(4)(b).
3. The tenant did not oppose the time for filing the Notice of Appeal being extended.
4. The relevant principles which generally inform the exercise of our discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, the reasons for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
5. The length of delay was minimal, being three days. This factor favours an extension of time.
6. As to the reasons for delay, this was not addressed in the Notice of Appeal.
7. We consider that the appellant had a barely arguable case. It was perhaps not hopeless, but it was a weak appeal. We consider this to be a neutral factor in considering whether to grant the extension of time.
8. As for prejudice to the respondent, we see no real prejudice to the respondents. This matter too therefore favours an extension of time.
9. Balancing all these matters, and given the tenant's lack of opposition to the extension of time (the tenant stating in the Reply that he accepted that the appeal had been filed in time), we consider that the time for filing the Notice of Appeal should be extended to 22 July 2025.

(1) The application for leave to extend the time for the filing of the Notice of Appeal is granted, and the time for filing the Notice of Appeal is extended to 4 July 2025.

(2) To the extent that the appeal raises a question of law, the appeal is dismissed.

(3) To the extent that the appeal raises any other error, leave to appeal is refused and the appeal 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.

[1] On its face, the MouldPro Repport appears to be undated. However the Primary Decision at [34] refers to the premises being inspected by MouldPro on 12 July 2024 and the report being received on 18 July 2024.

[2] These pages appear at 147-148 of the landlord's bundle of materials filed on 25 August 2025. We note that page 1 of 25 also was attached to the Notice of Appeal.

[3] This document is attached to the Notice of Appeal. This document also appears at 147 of the landlord's bundle of materials filed on 25 August 2025.

[4] This document is attached to the Notice of Appeal. This document also appears at 150-157 of the landlord's bundle of materials filed on 25 August 2025.

[10] See too, Primary Decision at [20].