LAND LAW – Residential Tenancies Act 2010 (NSW) – breach of
quiet enjoyment –identification of the agent of the landlord –
whether landlord liable for actions
of third parties – condition of the
Source
Original judgment source is linked above.
Catchwords
LAND LAW – Residential Tenancies Act 2010 (NSW) – breach ofquiet enjoyment –identification of the agent of the landlord –whether landlord liable for actionsof third parties – condition of thepremises – whether premises kept in a reasonable state ofrepair APPEALS – practice and procedure – whetherextension of time should be granted – Civil and Administrative Tribunal
Zonnevylle v Secretary, Department of Communities and Justice [2026] NSWCATAP 1
[27]
Lynette Mary Anne Sheekey and Alannah Ruby Sheekey (Appellant)
[28]
This is an appeal by a former tenant of a decision of the Tribunal dated 23 July 2025 to dismiss the former tenants' claim for compensation against the former landlord.
The former tenants are mother and daughter.
The parties entered into a written residential tenancy agreement on 18 February 2019. A subsequent fixed term written residential tenancy agreement was entered into on 15 September 2023. The tenancy ended in February 2025.
On 19 March 2025, the tenants commenced Tribunal proceedings against the landlord seeking compensation to the maximum jurisdictional limit of the Tribunal under the Residential Tenancies Act 2010 (NSW) (RT Act) and Residential Tenancies Regulation 2019 (NSW) (RT Regulation).
There were two aspects of the claim. The first was loss of quiet enjoyment. The loss of quiet enjoyment was due to the alleged harassing conduct of Ms Eloss, her son, and her daughter in law. Ms Eloss, her son, and her daughter in law lived in the same street as the tenants. The tenants asserted that Ms Eloss was a property manager who, according to the tenants, worked in the employ of the agent of the landlord. The tenants asserted Ms Eloss was the agent of the landlord because she conducted the pre-rental inspection of the property; signed the 2019 lease on behalf of the landlord; and made various representations she could influence the landlord to take action against the tenants.
The application filed with the Tribunal identified various instances of alleged harassing and intimidatory conduct by Ms Eloss, her son and her daughter in law between December 2024 and February 2025. The issues identified commenced when the son of Mr Eloss allegedly set off "illegal fireworks;" there was a confrontation; and Police were called.
The second aspect of the claim for compensation was the state of repair of the premises. The tenants alleged that there was mould in the premises throughout the tenancy that caused loss of amenity and damaged the tenants' goods and belongings. In respect of mould damage, the tenants' identified a number of items of furniture and bedding that was mould damaged and required replacement.
[29]
Paragraphs [1]-[4] set out the claims of the tenants and the documentary evidence the parties relied upon at the hearing.
Paragraphs [6]-[9] set out the tenants' evidence on the issue of loss of quiet enjoyment due to the alleged actions of Ms Eloss; her son; and her daughter in law. The tenants asserted that Ms Eloss was the "agent who they signed the original lease with." She lived in the same street as the tenants, which was a small cul-de-sac. In September 2024, the son and daughter in law of Ms Eloss moved into a new duplex next door to the tenants. After a dispute about letting off fireworks on Christmas Eve involving the son of Mr Eloss, Ms Eloss attempted to "smooth things over" with the tenants, but reminded them she "obtained the property for them." There were further alleged incidents involving Ms Eloss, her son, and her daughter in law involving harassment and intimidation over the next few weeks. The tenants served a Notice of Termination under s 98 of the RT Act.
Paragraphs [10]-[12] set out the landlord's evidence and submissions on the issue of the alleged conduct of Ms Eloss, her son, and her daughter in law. The position of the landlord's agent was that Ms Eloss was not an employee of the agency, but was a sub-contractor. Ms Eloss was not the agent who managed the property on behalf of the landlord and did not have any authority to act by the landlord. The landlord's agent was unaware of the alleged incidents over Christmas and new year, as its office was closed and there was no email correspondence from the tenants. The landlord could not be held responsible for loss of quiet enjoyment in the circumstances, which involved a dispute between neighbours.
At [13]-[14] the Tribunal found that although Ms Eloss (on the evidence of the tenants) indicating "in some way" she represented the agency that manages the property on behalf the landlord, the landlord was not responsible for any breach of quiet enjoyment in the circumstances. The Tribunal found the tenants' claim for compensation due to cleaning, moving costs and lawnmowing must fail because there was no breach of quiet enjoyment by the landlord, and the costs of the tenants are costs normally incurred at the end of the tenancy. Further, any fears of the tenants were not compensable, because they involved a dispute with a neighbour unrelated to the tenancy.
At [15][18] the Tribunal referred to the evidence of the tenants regarding the condition of the premises and the alleged failure of the landlord to keep the premises in a reasonable state of repair. The tenants asserted there was mould throughout the property for the duration of the tenancy and they frequently raised the issue with the landlord's agent. Various windows could not be opened. There was a "termite infestation." There was termite activity and mould. According to the tenants there was mould in parts of the property; and a damp and musty smell, which affected their amenity of the premises including a back room. The tenants "were not aware of the extent of the mould until they were moving out of the property and found mould on a significant number of items."
[30]
The tenants lodged a Notice of Appeal on 17 September 2025. Prima facie, the appeal has been lodged outside the applicable time period under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). That regulation provides that an internal appeal to the Appeal Panel from a decision in residential proceedings be lodged within 14 days of the date of the decision to the date the decision is received, whichever is the later. The time period can be extended under s 41 of the NCAT Act.
The Notice of Appeal asserts the decision was in time as the decision was not received until 3 September 2025. However, the written decision was sent to the email address of Ms Lana Sheekey by the Tribunal on 23 July 2025.
According to the information in the Notice of Appeal, Ms Lynette Sheekey kept checking her email address for a number of weeks, and telephoned the Tribunal Registry, who told her it can take up to 6 weeks for a decision and reasons to be issued. Ms Sheekey waited 7 weeks and called the Registry. She was informed the decision had been emailed to the email address of her daughter (who was a co-tenant and was a party to the Tribunal proceedings). Ms Sheekey and her daughter checked the email in box and found the decision had gone to "junk mail." The tenants lodged an appeal soon thereafter.
The grounds of appeal of appeal focus upon disagreement with the factual findings made. The only potential errors on a question of law that are identified are: (a) the tenant had provided oral and documentary evidence of mould in the premises; and (b) the Member was "biased" and did not concentrate or was distracted at the hearing.
The other matters raised in the grounds of appeal are clearly matters that require leave to appeal. The tenants assert the decision was not fair and equitable and was against the weight of evidence. No ground is raised that there is significant new evidence that was not reasonably available at the date of hearing.
The landlord lodged a Reply to Appeal on 8 October 2025.
Procedural directions were made for the preparation of the appeal by Blake AM SC on 10 October 2025 and 6 November 2025.
[31]
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.
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].
What is an error on a question of law was 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.
In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:
[32]
"[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."
[33]
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.
However, an error on a question of law may arise in the circumstances including the following:
(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J);
(3) 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; at - and [413]; at and [9]).
[35]
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)(a)-(c) 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:
[36]
(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).
[37]
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:
[38]
"[76]... 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."
[39]
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 (BHP Billiton Ltd v Dunning[2013] NSWCA 421 at [19]; Pholi v Wearne[2014] NSWCATAP 78 at [32]).
The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has 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, it would be in the interests of justice for it to be reviewed.
[40]
Has an Error on a Question of Law Been Established?
[41]
Grounds of appeal of an unrepresented litigant should be considered in a manner that focusses upon their substance to determine whether an error on a question of law is raised, subject to procedural fairness considerations to the other party. It is not the role of the Appeal Panel to create or manufacture an error on a question of law in the decision under appeal when none has been identified in substance in the grounds of appeal.
Considered in substance, and without a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point (Mendonca v Legal Services Commissioner[2020] NSWCA 84), the grounds of appeal and submissions of the tenants identify the following potential errors on a question of law:
[42]
(1) Denial of procedural fairness, in the sense of apprehended bias of the Tribunal; and
(2) No evidence to support a factual finding
[43]
The principles applicable to apprehended bias are well established. A concise summary is set out in Zonnevylle v Secretary, Department of Communities and Justice[2026] NSWCATAP 1 at [9]- [11] (Zonnevylle). It must be established that, assessed objectively, a fair-minded lay observer might reasonably apprehend the decision maker might not bring an impartial mind to resolution of the question the decision maker is required to decide. Having considered the material in the transcript and sound recording of the hearing, the is no basis established for concluding the Member displayed apprehended bias. Actual bias is also not established (Zonnevylle at [3]).
The tenants' submit that the Member did not focus or concentrate on the evidence at the hearing. That subjective interpretation and assertion is not supported by the transcript and sound recording of the hearing. There is no conduct of the Member of a type that would constitute a denial of procedural fairness, or any other error on a question of law such as constructive failure to exercise jurisdiction (Stojonoff v Webber (No 2)[2024] NSWCATAP 137).
The transcript and sound recording indicate the Member conducted the hearing in a manner that was efficient and procedurally fair. The tenants' criticism of the Member is unfounded and unwarranted.
[44]
Although most of the tenants' submissions involve the weight that was given to the tenants' evidence in the context of the factual findings that were made, some of the submissions raise that there was no evidence at all to support factual findings that were made. A factual finding made without any evidence is an error on a question of law. A factual finding made where there was some evidence is not an error on a question of law, and can only form the basis of a successful appeal if it involves a type of error for which leave to appeal is granted.
None of the factual findings made were made the absence of any evidence. No error on a question of law is established.
[45]
As discussed previously, pursuant to the principles set out in Collins v Urban, the tenants must establish that they may have suffered a substantial miscarriage of justice because the decision is not fair and equitable; or the decision is against the weight of evidence. The tenants are not relying upon there being significant new evidence now available that was not available at the hearing. Further, the tenants must establish that the Appeal Panel should exercise its discretion to grant leave to appeal.
[46]
There are two aspects to the tenants argument. The first is the issue of whether Ms Eloss was the agent of the landlord such that the landlord could be held liable for loss of quiet enjoyment. The second is the issue of the state of repair of the premises.
Section 50 of the RT Act states as follows:
[47]
50 Tenant's right to quiet enjoyment
(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.
(2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.
Maximum penalty - 10 penalty units.
(3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
(4) This section is a term of every residential tenancy agreement.
[48]
The principles applicable to s 50 of the RT Act were recently summarised in Vok v NSW Land and Housing Corporation[2024] NSWCATAP 324. Loss of quiet enjoyment involves whether the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the actions of the landlord; or a person claiming by, through or under the landlord; or a person with superior title (such as head landlord) or the agent of the landlord.
There is no evidence to suggest that the son and daughter in law of Ms Eloss rented a property with the same landlord as the tenants. Accordingly, for there to be liability under s 50 of the RT Act, it only arises under ss 50(1) and/or (2) of the RT Act.
The tenants asserted that Ms Eloss was the agent of the landlord because she had shown the property on behalf of the agency in 2019; she made verbal assertions that she was involved with the agency and had influence on how the property was managed; she had "signed" the lease in 2019; and she was referred to on the website of the landlord as a "sales manager" of the agency.
The landlord asserted that Ms Eloss was not the agent of the landlord; nor was the landlord responsible for any alleged actions of Ms Eloss, her son and her daughter in law. Ms Eloss was not the principal of the licensed agent; nor did she have management of the tenancy on behalf of the licensed agent. She was a sub-contractor of the agency. The Tribunal found, in substance, that Ms Eloss, her son and her daughter in law did not fall within the responsibility of the landlord to provide quiet enjoyment under s 50 of the RT Act.
The documents in the appeal provided by both parties included the 2019 written residential tenancy agreement. That document was not signed on behalf of the landlord by Ms Eloss. Rather, it was signed on behalf of the landlord by the principal of the licensed agency who managed the property, Ms White. Ms Eloss witnessed signatures of the tenants and Ms White.
However, there was no evidence before the Tribunal of any further actions of Ms Eloss during the course of the tenancy to establish she was involved in the management of the tenancy as the agent of the landlord. She did not conduct period inspections on behalf of the landlord, nor was the agent who was involved in the day-to-day management of the tenancy.
[49]
To establish a decision was against the weight of evidence, tenants must establish that "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach" (Collins v Urban at [77] citing Calin v The Greater Union Organisation Pty Ltd(1991) 173 CLR 33; [1991] HCA 23 at 41-42 and Mainteck Services Pty Limited v Stein Heurtey SA[2013] NSWSC 266 at [153]).
The tenants' have not satisfied that legal threshold. Having considered the documents that both parties provided to the Tribunal, as well as what is set out in the transcript, the findings made to the Tribunal were open to it based on the evidence before it.
[50]
The Appeal Panel is satisfied that the Tribunal's decision was "received" on 23 July 2025 when it was emailed by the Tribunal Registry to Alannah Sheekey. An extension of time is required under s 41 of the NCAT Act.
The Tribunal is satisfied that the tenants have provided a reasonable explanation for the delay in lodging the appeal. The extension of time is not lengthy; the tenants have arguable grounds of appeal; and there is no prejudice or unfairness to the respondent in extending time under s 41 of the NCAT Act (Jackson v NSW Land and Housing Corporation[2014] NSWCATAP 22).
However, the Appeal Panel has set out previously why it is not satisfied that the tenants have established any error on a question or law, or type of error for which leave to appeal would be granted. In circumstances where the appeal fails if time is extended, it is futile to extend time. Accordingly, leave to extend time to lodge the appeal under s 41 of the NCAT Act is refused.
[51]
Leave to extend time to file the appeal is refused. Even if an extension was granted, leave to appeal would be refused and the appeal dismissed.
[52]
(1) The application to extend time to lodge the appeal is dismissed.
[53]
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.
Parties
Applicant/Plaintiff:
Sheekey
Respondent/Defendant:
Swain [2026] NSWCATAP 59;
Legislation Cited (4)
Tenancies Act 2010
Administrative Tribunal Act 2013
Administrative Tribunal Rules 2014
Tenancies Regulation 2019
Cases Cited (9)
(2020) 103 NSWLR 479
(1990) 170 CLR 321
(1985) 4 NSWLR 139
(1991) 173 CLR 33
(2010) 239 CLR 531
(2010) 241 CLR 390
(2000) 204 CLR 82
(1987) 163 CLR 54
(1968) 118 CLR 186
The Tribunal proceedings were listed for hearing on 22 July 2025. The tenants appeared and gave evidence. Ms Sayers, licensed agent of the landlord, appeared and gave evidence. On 23 July 2025, the Tribunal published its written reasons.
At [19]-[21] the Tribunal referred to the landlord's evidence. The landlord acknowledged that there were some windows painted shut, but they could be opened if needed and there were windows in every room able to be opened for ventilation. The property was an older property that was "in a fairly unrenovated state of repair" and the rent had not increased in the 6 years of the tenancy . The landlord asserted there were no mould complaints until the tenants' vacated the property. The photographs at a period inspection in December 2024 did not show mould. The landlord had obtained an expert report regarding termites, which showed all termite damage was before the tenancy commenced and there were no active termites during the tenancy.
At [23]-[24] the Tribunal set out findings in respect of the tenants' claim for compensation due to the alleged failure to keep and maintain the premises in a reasonable state of repair. The Tribunal found that the tenants' had not advised the landlord of any mould issues prior to the end of the tenancy, or sought repairs during the tenancy. The photographs at the period inspection on 5 December 2024 did not show evidence of mould. There was no evidence of water ingress into the residential premises. The photographic evidence provided by the tenants showed the premises was in a "relatively poor state of repair" but that did not change during the course of the tenancy and the Tribunal did not accept the tenants had made a request for repairs that had not been attended to within a reasonable period of time by the landlord. Any mould in the premises was not due to any breach of the landlord's duty regarding the state of repair of the premises.
On 14 November 2025, the tenants lodged their appeal documents and submissions. Those documents included the documents they relied upon at the Tribunal hearing; a sound recording of the hearing; a written transcript of the hearing; and written submissions.
On 12 December 2025, the landlord lodged its appeal documents and submissions. Those documents include the documents the landlord relied upon at the Tribunal hearing.
At the appeal hearing on 16 December 2025, Ms L. Sheekey appeared and Ms L. Sayers, agent, appeared for the landlord. Both parties were ready to proceed and did not seek an adjournment of the appeal hearing. Both parties made oral submissions.
(4) 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] (Bimson)). 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).
(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd(2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth(1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321; [1990] HCA 33 at [83]-[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB(1985) 4 NSWLR 139 at 155 per Glass JA.
The evidence of the tenants does not clearly establish that Ms Eloss had actual or ostensible authority as the agent of the landlord such that her alleged actions, or the actions of her son and daughter in law, bound the landlord (Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation[2020] NSWCA 144 at [63] and [107]-[108]; Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd[2019] NSWCA 32 at [74] - [86]). The Tribunal being arguably wrong in in the conclusion arrived at is insufficient to grant leave to appeal.
It was open to the Tribunal on the evidence before it not to be satisfied that Ms Eloss had any actual or ostensible legal authority to represent or bind the landlord as of September 2024 onwards, and was not a person who fell within s 50 of the RT Act such that the landlord could be liable for any purported breach of quiet enjoyment.
It follows that the landlord could not be liable under s 50 of the RT Act for the actions of Ms Eloss's son and daughter in law, irrespective of whether the allegations of the tenants were proved to the requisite legal standard.
Further, it is unclear how the purported actions of Ms Eloss, her son and her daughter in law constitute a substantial interference with the lawful use and enjoyment of the rented premises; as distinct from a personal conflict that, whilst affecting the psychological welfare of the tenants, did not substantially interfere with the tenants' lawful use and enjoyment of the rented premises.
No error of a type that would cause leave to appeal to be granted is established in respect of the findings on the issue of loss of quiet enjoyment due to the alleged actions of Ms Eloss; her son; and her daughter in law.
The second issue pertains to the duties of the landlord regarding the condition of the premises. The applicable legal principles under s 52 (fitness for habitation); and ss 63 and 65 (keeping and maintaining premises in a reasonable state of repair having regard to the age of the premises; the rent payable for the premises; and the prospective life of the premises) were recently summarised in Williams v Wang[2025] NSWCATAP 314 at [45]- [50].
In substance, the Tribunal found that there was some mould in the premises during the course of the tenancy as well as termite damage (however, the termites were inactive during the course of the tenancy) but the tenants did not raise these issues and seek repairs until the tenancy had ended. Accordingly, there was no failure to perform repairs with reasonable diligence because the landlord was not aware, or should reasonably have been aware, of any need to repair.
The tenants' assert that they made oral, rather than written, complaints during the course of the tenancy. The landlord's agent denied this. There were competing versions of events. It was open to the Tribunal on the evidence before it to conclude that the tenant had failed to establish breach of either ss 52 or 63 of the RT Act. The tenants' disagreement with that finding is acknowledged, but the tenants have failed to establish the decision was not fair and equitable.