Rushton v St George Community Housing Limited

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 28 February 2025. Written reasons were provided by the Tribunal.
2. The appellant is a social housing tenant and the respondent a social housing landlord. The tenant lives in a block of units.
3. In this decision, any reference to "the tenant" is a reference to the appellant; and any reference to "the landlord" is a reference to the respondent.
4. The Tribunal ordered the tenant compensate the landlord for the cost of replacing a fire rated front door of the premises in circumstances where the tenant had, without consent of the landlord, installed a large additional locking device in the door.

1. In 2023, the tenant commenced proceedings against the landlord in the Tribunal seeking various orders, including a rent reduction; repairs; and that a notice to terminate be declared retaliatory. The landlord also commenced proceedings against the tenant seeking access orders to the premises and an order for termination of the tenancy due to non-payment of rent.
2. On 22 February 2022, the Tribunal dismissed the tenant's application by reason of non-appearance. The landlord's application was withdrawn and accordingly dismissed under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
3. In April 2024, the landlord brought fresh proceedings against the tenant seeking various orders under the Residential Tenancies Act 2010 (NSW) (RT Act).
4. One of the orders sought was that the tenant pay the landlord compensation under s 187(1) of the RT Act for the tenant's alleged unauthorised alteration of a fire rated front door. The landlord sought $3,825.25 for the cost of replacing the door.
5. In May 2024, the Tribunal made orders in favour of the landlord. The tenant appealed that decision to the Appeal Panel of the Tribunal.
6. In August 2024, the Appeal Panel allowed the appeal and remitted the proceedings to the Tribunal.
7. On 24 January 2025, the proceedings were listed for hearing before the Tribunal. The tenant appeared in person. Ms Cameron appeared for the landlord.
8. On 28 February 2025, the Tribunal issued a written decision. The Tribunal ordered the tenant pay compensation to the landlord in the amount of $3,825.25 for the cost of replacing the door.
9. There have been other proceedings involving the parties, including in respect of termination of the tenancy, which are unnecessary to detail as they involve separate appeal proceedings that are yet to be determined.

1. The Tribunal stated that the issues to be determined were: (a) whether time should be extended for the landlord to file Tribunal proceedings; (b) whether the tenant breached the obligation under s 66 of the RT Act not to alter the premises without the prior consent of the landlord; and (c) if an extension of time was granted and breach established, calculation of the compensable loss of the landlord.
2. The Tribunal summarised the documentary evidence both parties relied upon. The Tribunal made the following factual findings:

(1) There was a residential tenancy agreement between the parties.

(2) Sometime between February 2023 and September 2023 the tenant had altered the front door by installing an additional lock and a security camera.

(3) In September 2023, the landlord became aware that the tenant had made the alterations. The landlord wrote to the tenant stating that the tenant had previously requested consent from the landlord to install an additional lock on the front door, but this had been refused. The landlord stated the tenant would be required to pay for replacement of the door, as the works had compromised its integrity.

(4) In October 2023, a tradesperson from Phoenix Fire Protection and Maintenance attended the premises and confirmed the door needed to be replaced due to the alternation by the tenant.

(5) In November 2024, the landlord obtained a quotation for the cost of replacing the door.

(6) In January 2024, the landlord attempted to replace the door and the tenant opposed this. The tenant requested an explanation as to why the door required replacement. The landlord provided a report from Phoenix Fire Protection that stated the equipment installed by the tenant on the door was not compliant with applicable Australian Standards and affected the structural integrity of the door.

(7) The landlord had commenced Tribunal proceedings seeking orders for access and replacing the door in November 2023. In February 2024, the landlord withdrew that application under s 55(1)(a) of the NCAT Act.

(8) In April 2024, the landlord commenced fresh Tribunal proceedings that included seeking compensation for the cost of rectification of the unauthorised works.

(9) In June 2024, the landlord engaged a contractor and replaced the front door.

1. The Tribunal considered the issue of an extension of time. Under Reg 39(9) of the Residential Tenancies Regulation 2019 (NSW) (RT Reg) the applicable period for commencing proceedings in the Tribunal is 3 months from when the party becomes aware of the breach. That period can be extended under s 41 of the NCAT Act. The Tribunal found that the original proceedings (that were withdrawn) were commenced in time; but the fresh proceedings were 3-4 months out of time, in circumstances where the landlord was aware of the breach in late September 2023.
2. The Tribunal identified and applied the legal principles for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The Tribunal gave a detailed explanation of the position of both parties as to why time should, or should not, be extended (at paragraphs [25]-[34] of the decision). The Tribunal found that time should be extended and explained at paragraphs [32]-[35] why the discretion was exercised in favour of extending time for the landlord to bring the proceedings.
3. The Tribunal dealt with the issue of whether breach by the tenant was established at paragraphs [36]-44] of the reasons. The Tribunal set out s 66 of the RT Act (which prevents a tenant from installing fixtures; or renovating, altering or adding to the residential premises other than with the landlord's written consent or in accordance with the terms of the residential tenancy agreement); s 190 of the RT Act (which allows a landlord or tenant to apply to the Tribunal when there has been a breach of the agreement or any term implied into the residential tenancy agreement by the RT Act); and s 187(1)(c) of the RT Act (which allows an order for compensation due to breach of the agreement).
4. The Tribunal stated the tenant agreed that he had altered the door, and the landlord had not given prior consent to the alteration. The tenant asserted three basis for resisting the landlord's claim. The first was that he had to install the additional security due to living in a high crime area and the landlord's refusal to give consent to the alterations was unreasonable. The second was that the person who signed the report from Phoenix Fire Protection was the "operations manager" and was not properly qualified and accredited to assert the alterations made the door non-compliant with fire safety requirements. The third was that the tenant had obtained emails from NSW Fire & Rescue.
5. The Tribunal rejected the tenant's submissions. The Tribunal found that there was sufficient evidence that the altered door was non-compliant with fire safety standards and needed to be replaced. The Tribunal did not accept it should not give any evidentiary weight to the documentary evidence from Phoenix Fire Protection. The Tribunal did not give any evidentiary weight to the emails from NSW Fire & Rescue in circumstances where they had not inspected the altered door. The Tribunal did not accept that living in a high crime area relieved the tenant from compliance with the tenant's obligations under s 66 of the RT Act.
6. After being satisfied that breach was established, the Tribunal moved to the issue of compensation. The Tribunal accepted the evidence of the landlord that replacement of the door cost $3,825.25 and noted that there was no evidence from any tradesperson engaged by the tenant that the cost was unreasonable or excessive.

1. The tenant filed a notice of appeal on 6 March 2025. The appeal was filed within the applicable period in Reg 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The tenant's ground of appeal are summarised as follows:

(1) The Tribunal erred in granting an extension of time for the landlord to commence the Tribunal proceedings.

(2) The Tribunal made "incorrect findings of fact." The incorrect factual findings are identified as (a) the circumstances in which the landlord withdrew the first Tribunal proceedings; (b) the Tribunal "failing to acknowledge" the tenant had his own compensation proceedings against the landlord that were listed for hearing on the same day of the landlord's first application; (c) the landlord's fresh application did not include "consideration" of the tenant's compensation claim and an offer the landlord had made to the tenant regarding compensation; (d) the landlord's fresh application had sought an increased amount for the cost of replacing the door compared to the first application; (e) the tenant believed that when the landlord withdrew the first proceedings there would be no further proceedings.

(3) The Tribunal "failed to consider security concerns" of the tenant. The Tribunal had failed to consider the landlord's obligation to provide reasonably secure premises; or that the tenant "had no ability to select a safer location."

(4) The Tribunal "unreasonably accepted" the landlord's evidence from Phoenix Fire Protection. The report "did not contain the name or signature of a qualified fire safety inspector;" and the tenant was "advised" from "Fire Protection Association of Australia" that an inspection was required.

(5) The Tribunal "failed to take into account the tenant's cross claim which was of greater value than the landlord's claim;" an offer of settlement made by the landlord in respect of Dyson heater; and the Tribunal "did not properly address financial fairness."

1. Both parties filed and served documentary materials and submission in the appeal.
2. The appellant's documents included the documents that had been before the Tribunal in the proceedings listed for hearing on 24 January 2025. The tenant also provided documents he had relied upon in his proceedings against the landlord that were the subject of the proceedings listed for hearing on 22 February 2024.
3. The tenant's proceedings that were dismissed for non-appearance on 22 February 2024 were the subject of a reinstatement application under s 55(2) of the NCAT Act that was unsuccessful. The tenant's documents also contained a transcript of what occurred at the Tribunal on 22 February 2024.
4. The decision on 22 February 2024 is not the subject of this appeal; nor the decision to refuse to reinstate the tenant's proceedings against the landlord.
5. The landlord's documents included the documents that were before the Tribunal at the hearing on 24 January 2025.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law. What is an error on a question of law was further extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law (if established) is an appeal made as of right and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:

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

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

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39]).

(2) A constructive failure to exercise jurisdiction, in the sense of a failure to consider a "substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

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

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

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

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

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

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

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

1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. Ordinarily it is only appropriate to grant leave in matters involving issues of principle or questions of public importance which might have general application, an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision (Collins v Urban at [84]).
3. In respect of a self-represented non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

1. At the appeal hearing, the tenant expressed dissatisfaction with the Tribunal's decision on 28 February 2025. However, as discussed previously, that is not sufficient to succeed in an appeal.
2. No transcript or sound recording was provided of the hearing on 24 January 2025. Rather, the transcript provided was of a decision not subject to appeal.
3. The tenant is the appellant who must establish appealable error, and bears the consequences of the failure to provide a sound recording or transcript of the hearing (Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [25]; Sengos v Hassan [2022] NSWCATAP 366 at [42]- [43]).
4. Section 66 of the RT Act states as follows:

66 Tenant must not make alterations to premises without consent

(1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A) The regulations may make provision for or with respect to the following -

(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

(b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

(5) This section is a term of every residential tenancy agreement.

68 Tenants' remedies for alterations

(1) The Tribunal may, on application by a tenant, make any of the following orders, if the landlord fails to consent -

(a) an order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises,

(b) an order that the tenant is entitled to remove a fixture installed by the tenant.

(2) The Tribunal may order that the tenant may install a fixture or make a renovation, alteration or addition to the residential premises only if it is satisfied -

(a) that the landlord's failure to give consent is unreasonable, and

(b) if the consent is to a renovation, alteration or addition, that it is of a minor nature.

(3) The Tribunal may determine that a landlord's failure to consent is reasonable in any of the following circumstances (but is not limited to those circumstances for such a determination) -

(a) if the work involves structural changes,

(b) if the work involves work that would not be reasonably capable of rectification, repair or removal,

(c) if the work involves internal or external painting of the residential premises,

(d) if the work is prohibited under any other law,

(e) if the work is not consistent with the nature of the property.

69 Landlords' remedies for alterations

(1) The Tribunal may, on application by a landlord, make any of the following orders -

(a) an order prohibiting the tenant from removing a fixture,

(b) an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant on the residential premises.

(2) The Tribunal may make an order under subsection (1)(b) only if the Tribunal is satisfied that -

(a) the work was not done to a satisfactory standard, or

(b) the work, if not rectified, is likely to adversely affect the landlord's ability to let the residential premises to other tenants.

(3) The Tribunal may make an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant whether or not the landlord consented to the carrying out of the work.

1. Sections 70-73 of the RT Act contain provisions regarding the reasonable security of the premises; and circumstances in which locks, or security devices can be changed.
2. Section 187 of the RT Act relevantly states:

187 Orders that may be made by Tribunal

(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders -

(a) an order that restrains any action in breach of a residential tenancy agreement,

(b) an order that requires an action in performance of a residential tenancy agreement,

(c) an order for the payment of an amount of money,

(d) an order as to compensation,

(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

...

1. The withdrawal of the landlord's proceedings on 22 February 2024 did not prevent the landlord from bringing fresh proceedings seeking an order for compensation, subject to the limitation period.
2. As the Tribunal correctly identified, the relevant period for the landlord to bring Tribunal proceedings is 3 months from the date the landlord became aware of the breach (Reg 39(9) of the RT Regulation) which can be extended under s 41 of the NCAT Act.
3. The tenant asserts that the Tribunal should not have extended time.
4. However, the reasons of the Tribunal clearly identify the correct legal principles and contain a detailed explanation as to why time should be extended. The correct legal principles were referred to. The exercise of the Tribunal's discretion to extend time was a decision open to it based on the evidence before it. There was no error of at type that falls within the types of errors pertaining to the exercise of discretion in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
5. No error on a question of law has been demonstrated, nor has any basis been established for granting leave to appeal on this ground.

1. The tenant refers to "incorrect findings of fact." To appeal from purported errors in factual findings, leave to appeal is required.
2. No basis has been established to grant leave to appeal. The factual findings were orthodox and open to the Tribunal to make based on the evidence before it. The matters raised are, in substance, an impermissible attempt to re-argue the case at first instance.

1. The tenant asserts the Tribunal failed to consider the tenant's "security concerns" as the reason the tenant altered the front door.
2. Failure to consider a substantial, clearly articulated argument relying upon established facts raised by a party at a hearing may constitute a constructive failure to exercise jurisdiction, which is an error on a question of law.
3. The Tribunal's reasons referred to the tenant raising that made the alteration to the door because he lived in a "high crime area." At the appeal hearing, the tenant also raised his inability to unilaterally transfer his social housing tenancy to another residence in a different area; and that he held concerns for his safety due to harassment by a particular individual.
4. In respect of living in a "high crime area," the Tribunal considered that argument and found that was not a basis for the tenant conducting unauthorised alternations. Accordingly, the argument was considered.
5. The tenant's inability to unilaterally transfer the tenancy to different residential premises in a different area is not a permissible basis to depart from the tenant's obligations under the RT Act.
6. We are not satisfied that the Tribunal failed to consider the other safety issues raised in the appeal argument. The tenant did not provide a transcript or sound recording of the Tribunal hearing on 24 January 2025. It is well established that fresh issues and arguments usually cannot be raised on appeal. In Yi v Park [2024] NSWCA 187, Bell CJ (with whom Mitchelmore JA and Adamson JA agreed) stated (at [53]):

"It is an important principle, underscored by considerations of practical fairness and the importance of finality in litigation, that fresh arguments are generally not permitted to be advanced on appeal. Thus, in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51], Gleeson CJ, McHugh and Gummow JJ said, referring to University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8-9; [1986] HCA 33; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 at [44]; and Water Board v Moustakas (1988) 180 CLR 491 at 496-497; [1988] HCA 12, that it:

"... would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination."

1. Without a transcript or sound recording of the hearing, the tenant cannot establish any constructive failure to exercise jurisdiction. There is also no fresh evidence that we would grant leave to rely upon in respect of this issue.
2. Further, we are not satisfied leave to appeal should be granted in respect of this ground. The factual findings were orthodox and open to the Tribunal to make on the evidence before it.

1. We cannot ascertain an error on a question of law in respect of the Tribunal admitting into evidence the report of Phoenix Fire Protection. The issue raised by the appellant goes to the weight of the evidence, not its admissibility (Shakiri v Holland [2024] NSWCATAP 28 at [88]- [113].
2. An appeal raising the weight to be given to the evidence is a matter that requires leave to appeal. No basis has been established to grant leave to appeal. The findings of the Tribunal that the modified front door was not fire safety compliant was open to it on the evidence before it.

1. This ground does not raise an error on a question of law. The Tribunal hearing on 24 January 2025 was dealing with the landlord's claim for compensation due to the tenant modifying the front fire rated door without the consent of the landlord. There were no separate proceedings by the tenant before the Tribunal for the Tribunal to consider. The Tribunal appropriately focussed upon the real issues in dispute, which involved the tenant's modification of the front fire rated door, and the cost to the landlord caused by the tenant's breach of s 66 of the RT Act.
2. The tenant's argument about "financial fairness" does not raise any error on a question of law. The Tribunal was satisfied that the door modified by the tenant need to be replaced, and there were cogent reasons and evidence to support that finding. The landlord provided evidence as to the cost of replacement of the door. It was open to the Tribunal to accept that evidence.
3. Further, the tenant has not established any basis to grant leave to appeal. As with the other grounds of appeal raised by the tenant that involved factual findings, we are satisfied that the factual findings made by the Tribunal were logical, orthodox, and open to the Tribunal to make on the evidence before it.

1. Having failed to establish an error on a question of law, or that leave to appeal should be granted, the appeal fails. We acknowledge the tenant feels strongly that he was justified in modifying the front door. However, that is not a permissible basis for allowing an appeal under s 80 of the NCAT Act.
2. On 21 March 2025, the Appeal Panel made a consent order staying the operation of the money order that is the subject of this appeal. As the appeal is dismissed, the stay is lifted.

(1) The stay of order 1 of the Tribunal dated 28 February 2025 in Case Number 2025/00126597 is lifted immediately.

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.