Rouge v NSW Land and Housing Corporation

1. The tenancy commenced in March 2025. Soon after it commenced, the tenant began contacting the landlord regarding repairs that, in her view, were required. She also sought to be relocated.
2. The tenant lodged an application with NCAT, number 2025/00169126, on 2 May 2025, arguing that the premises were uninhabitable, seeking orders for rent reduction, remedies for excessive rent on withdrawal of goods or services and in order that specific repairs be undertaken, and as well as an order for reimbursement of urgent repairs and compensation pursuant to Section 187 (1) (d) of the Residential Tenancies Act 2010 (NSW).
3. The landlord lodged an application 2025/00351555 seeking access to the premises to be able to undertake repairs.
4. The landlord had been directed to provide a new scope of works by order of 13 October 2025. It was common ground between the parties that after that order, the landlord's agents attended at the premises and the tenant showed them around and pointed out all the things which, in her view, needed to be repaired. The evidence of the tenant was that she spent about one hour accompanying them and they took photographs.
5. The landlord did not, after the inspection, alter the scope of repairs they had provided to the Tribunal and the tenant in April 2025, except to state that they had undertaken a recent inspection and adhered to the list of repairs they had identified in April 2025.
6. On 3 November 2025, matter number 2025/00351555 was listed for conciliation. On 3 November 2025, at around 2.15pm, in the conciliation hearing, the landlord confirmed that it sought access orders to be able to undertake the repairs that they had identified as being required. The landlord provided to the Tribunal and the other party a list of the works that it sought to carry out. The tenant had also received notice of that list of repairs in April 2025.
7. As there appeared to be an overlap between the orders sought by the landlord and those sought by the tenant, the Member stood over the application 2025/00351555 until 4 November 2025, when the application of the tenant, number 2025/00169126, was due to be heard.
8. It does not appear that on 3 November 2025 the tenant objected to the matter being stood over until 4 November at the hearing.
9. On 4 November 2025, the Member hearing the matter decided, after a 4.5 hour hearing, to make the repair orders sought by the landlord and to stand over the balance of matter 2025/00169126 for further hearing. That further hearing took place on 4 February 2025/00169126 and the tenant has also appealed against the decision in that matter.
10. The Orders of 4 November 2025 were made in two matters, matter number 2025/00169126 and matter 2025/00351555.
11. An Appeal against the Orders of 4 November 2025 was lodged on 11 November 2025.
12. On 5 December 2025, by consent of the parties, the operation of Orders 1,2,3 and 5 in matters 2025/00169126 and 2025/0035155 was stayed until further order of the Tribunal or finalisation of the appeal "whichever is earlier in time". No further order was made in relation to the stay, but these orders finalise the appeal.

1. The bases upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. Section 80 of the NCAT Act 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) of the NCAT Act).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. The categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"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.

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].

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

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the tenant 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. Leave to appeal is also required to appeal an interlocutory decision, as set out in Section 80(2)(a) of the NCAT Act. Taking into account the definition of "interlocutory order" in Section 4 of the NCAT, in this case, the Orders made on 4 November 2025 were not interlocutory, but final. There was no aspect of them that required further Orders. The fact that in the application of the tenant, number 2025/00169126, part of the application was stood over to be heard at a later date (4 February 2026) does not change that. It is the final orders that were made on 4 November 2025 that are the subject of the Appeal in this case.
2. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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 tenant 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. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the tenant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(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; or

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

(1) The Notice of Appeal lodged on 11 November 2025

(2) The Reply to Appeal lodged on 19 December 2025

(3) Tenant's submissions lodged on 23 January 2025/00169126

(4) Landlord's submissions lodged on 20 February 2025/00169126

(5) Oral submissions of the parties made during the appeal hearing.

1. The Notice of Appeal was lodged on 11 November 2025, which is within the 14 day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 ('the Rules').

1. The grounds of appeal specified in the Notice of Appeal and accompanying documents were, in summary:

(1) That matters 2025/00351555 and 2025/00169126 ought not have been heard on the same day and hearing them on the same day was procedurally unfair to the tenant and amounted to a breach of natural justice.

(2) That on 4 November the tenant had insufficient notice of the list of repairs sought by the landlord and this constituted a lack of procedural fairness and a breach of natural justice.

(3) That the Member lacked jurisdiction to make the Orders made on 4 November 2025.

(4) That the Department of Communities and Justice had not provided material sought by the tenant under a GIPA application and this was not considered at the hearing on 4 November 2025.

(5) That the balance of matters dealt with in the tenant's application 2025/00169126 were not dealt with in the Orders of 4 November 2025

(a) matter 2025/00351555 should not have been listed for hearing on the same day as matter 2025/00169126 as matter 2025/00169126 also involved questions of habitability, rent abatement and compensation and the list of repairs she believed should be undertaken was different from the list of repairs that the landlord wished to undertake.

(b) on 4 November 2025, some aspects of her application were not considered by the Member.

(c) It was impermissible to hear matter 2025/00351555 and 2025/00169126 on the same day.

(d) The list of orders sought by the landlord in matter 2025/00351555 was provided to the tenant impermissibly late.

(e) The landlord was obliged by the Order of the Tribunal to supply a new "updated" list of repairs to the Tribunal, rather than relying on the list created and supplied to the tenant in April 2025.

(f) For the above reasons, the Member lacked jurisdiction to make the Orders of 4 November 2025.

(a) The tenant has failed to identify any error on a question of law on appeal or that there were any other errors made in reaching and interlocutory decision.

(b) The tenant requires leave to appeal as the Orders of 4 November 2025 were an interlocutory decision.

(c) The orders sought in matter 2025/00351555 were relevant to the orders sought in matter 2025/00169126 and it was appropriate for the two matters to be heard together.

(d) Although the list of works relied on by the landlord was provided to the tenant on 3 November 2025, the same list had also been supplied to her in April 2025 and she had adequate and ample notice of it and had time to provide any evidence about the list upon which she sought to rely. There was therefore no denial of procedural fairness or a failure to consider relevant legislation and evidence. The applicant had every opportunity to present her case.

(e) The tenant did not object at the hearing of 4 November 2025 to the repairs set out in the landlord's scope of works circulated in April 2025 and confirmed on 3 November 2025.

(f) The Orders made were available to be made on the evidence before the Tribunal and were properly made.

(g) The balance of matter 2025/00169126 was stood over for further hearing, it was not neglected or ignored.

1. The tenant in this matter was unrepresented and we have therefore taken "a more generous or benevolent approach in assessing whether a notice of appeal adequately identifies a question of law interpreting and considering her grounds of appeal", as the Court of Appeal has indicated is warranted in such matters: Kudrynski v Orange City Council [2024] NSWCA 33 at [51] per Griffiths AJA with whom Justices Meagher and Kirk agreed.

1. During the appeal hearing, the tenant said variously that her application in matter 2025/00169126 involved further repairs that she thought should be undertaken and, on the other hand, that it involved her seeking a determination that the premises were uninhabitable, compensation and rent reduction for that.
2. It does, however, appear that the tenant sought further repairs to deal with what she saw (and sees) as important underlying structural issues in the property. Because of that, it was appropriate, given the duty of the Tribunal under Section 36(1) of the NCAT Act to hear these matters together. Section 36((1) provides that the guiding principle to be applied in practice and procedure in the Tribunal is "to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings".
3. There was sufficient similarity in the issues raised in the two applications to make that a suitable course, in effect hearing them "back to back" so that "evidence in one matter is evidence in the other". That is a common course in an appropriate matter. Given the similarity of the subject matter insofar as repairs were concerned, because both matters involved applications for orders for repair, it was appropriate and efficient that the matters be heard together. Doing so does not constitute an error on a question of law.

1. The tenant had ample notice of the repairs sought by the landlord in April 2025. Although the period where this was confirmed on 3 November 2025 was short, at no stage had she been informed by the landlord that the scope of works had changed from that notified to her in April 2025. She had never been given any contrary information from the landlord indicating that that scope of the repairs proposed by the landlord had changed from that notified to her in April 2025.
2. The landlord does not agree that there are additional structural problems as asserted by the applicant. That question would have been determined, presumably, on 4 February 2025/00169126, when the balance of matter 2025/00169126 was heard, but in any event, it is only the Orders of 4 November 2025 that are before the Tribunal in this appeal.
3. The tenant claims a denial of procedural fairness in that she had inadequate notice of what the landlord was seeking in terms of the scope of repairs that were part of that application. That appears to be her main argument on appeal and, if established, a denial of procedural fairness would constitute a question of law. However, she was on notice of the extent those repairs from April 2025.
4. The tenant had adequate notice of the repairs sought by the landlord and there was therefore no denial of procedural fairness in the determination on 4 November 2025 as to whether or not those repairs should be ordered.
5. We are therefore not satisfied that the short period of time between confirmation by the landlord and the hearing of matters 2025/00351555 and 2025/00169126 prejudiced the tenant or constituted a breach of natural justice or lack of procedural fairness to her.

1. This ground relied on by the tenant in the Notice of Appeal appears to duplicate the grounds of breach of natural justice and/or breach of procedural fairness.
2. We find that the Tribunal had jurisdiction to make the orders it made, because there was a proper opportunity to each party to have prepared that party's case prior to the hearing. We are satisfied that there has been no breach of procedural fairness or natural justice in the procedural history of the matter, the hearing or in the Orders made on 4 November 2025.
3. The usual practice of the Tribunal is to institute orders for the filing of material by each party. The tenant could have provided her own expert building report as to whether or not the list of repairs identified by the landlord was a suitable list of repairs.
4. The tenant could have provided an expert report at any time from the filing of her application and in accordance with a timetable that had been made, or she could have sought an extension of the timetable and still provided the report well prior to the hearing.
5. The tenant sought to rely on a building or engineer's report on the day of hearing, 4 November 2025, without having previously provided it to the Tribunal or to the other party. No convincing explanation for failure to serve the report earlier appears to have been advanced by the tenant on 4 November 2025. The Member hearing the matters exercised her discretion not to admit such evidence. That decision was within her role and jurisdiction as a Member.
6. As no expert report was in evidence, there was no evidence beyond the tenant's own assertion as to the extent of repair issues she claims, beyond those identified by the landlord. There was no evidence that the tenant had any special knowledge, qualifications or experience in assessing such matters beyond those of an ordinary layperson. That may have affected the weight given to her submissions on such matters.
7. The tenant also argued that it was a breach of procedural fairness that the landlord had not prepared an entirely new scope of works as directed, but the landlord argued that it had undertaken an inspection of the property, in the company of the tenant, and formed a view that there was no need for further repairs apart from those already identified in April 2025/00169126.
8. We find that there was no obligation on the landlord to expand the list of proposed repairs identified in April 2025 after conducting the inspection latter in 2025. It chose not to do so. No question of law arises from the course taken by the landlord.
9. There was clear evidence to support a finding of fact that the property was in disrepair in breach of the Residential Tenancies Act 2010 and in need of extensive repairs.
10. The landlord needs to undertake repairs in accordance with their duty under s52 & 63 of the Residential Tenancies Act 2010 for the premises to be fit for habitation for the tenant, and to properly maintain the residential premises in a reasonable state of repair.
11. In finding that the property was in need of repairs, we are satisfied that the order has been made in accordance with the Tribunal's powers contained within s187 of the Residential Tenancies Act 2010.
12. The Orders were made on 4 November 2025 after parties had each had an opportunity to provide to the Tribunal and each other with documents upon which they relied and to engage orally at the hearing for 4.5 hours, which was a sufficient time for their views to be communicated to the Tribunal. There was no breach of the procedural fairness requirement in that process.

1. A GIPA application is conducted separately from the applications in issue in this Appeal, in another Division of the Tribunal. The conduct of a GIPA application and stage it had reached by 4 November 2025 is not relevant to whether the Orders made on 4 November 2025 constituted an error on a question of law. Nor was that a matter raised on 4 November 2025.

1. Application 2025/00169126 was heard on 4 November, and orders were made in it of a partial nature, standing over the question of whether any further repairs were required, any compensation, reimbursement or any rent reduction. That may not have been clear to the tenant when she lodged the appeal.
2. At the appeal hearing, the tenant expressed concern that underlying structural issues, which she identified as being a collapse of the roof, sinking of the flooring, a tree intruding into the structure, may not be dealt with if the repairs identified by the landlord were undertaken.
3. Given the balance of her application was stood over for a further hearing date, there was a further opportunity for the tenant to argue those matters. Concern as to other structural issues affecting the premises does not amount to identification of an error on a question of law in the Orders or decision of 4 November 2025, just a dispute as to the adequacy of repairs ordered.
4. During the appeal hearing it appeared that the tenant mainly agreed with the list of repairs identified by the landlord but disagreed on a few matters such as whether a door should be repainted or replaced, whether fly screens should be re-hung or replaced and similar matters. She agreed that most of the works identified by the landlord needed to be done.
5. A question arises as to whether the decision of 4 November 2025 was an interlocutory decision or not. The landlord argued that it was and the tenant made no submission on the point. The Orders made the subject of this appeal were in substance work orders for repairs but were not the entirety the applications because the balance of matters in issue between the parties was stood over to a further hearing (which occurred on 4 February 2026).
6. In those circumstances it is not appropriate to regard the decision and orders as interlocutory, because in fact final orders in respect of the defined portion of the application(s) had been made. There was no further consideration of those issues moving forward, which does not make the orders interlocutory. We consider that the decision in respect of the specific work orders of 4 November 2025 was a final decision. We do not agree with the landlord that it was an interlocutory decision. No further consideration in respect of the appeal is warranted on that point.
7. At the request of the tenant, a stay on the Orders of 4 November 2025 was granted. The landlord submits that it is now time for the works proposed to be completed, consistently with the duty of the landlord in maintaining the premises in reasonable and tenantable repair. The Tribunal accepts that submission. The stay on the Orders of 4 November 2025 shall hereby be lifted.
8. The landlord advised that they could start work on the repairs on 16 March 2025/00169126. The tenant submitted that she has a number of physical disabilities and needs additional time to clear the kitchen in particular so that a new kitchen can be installed. For that reason, additional time may be negotiated between the parties before commencement of the works, beyond that sought by the landlord. That is a matter between the parties.

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.