Thompson v Aboriginal Housing Office [2025] NSWCATAP 212 | Case summary

This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") against orders made in the Consumer and Commercial Division of the Tribunal on 13 January 2025.
The appeal relates to a dispute under the Residential Tenancies Act 2010 (NSW) ("RTA").
The application to the Tribunal was brought by Ms Thompson whom we will refer to as the tenant against the respondent which we will refer to as the landlord.
For the following reasons we have decided to allow the appeal in part.

The tenant entered into a residential tenancy agreement on 6 December 2013. The landlord was named as NSW Land and Housing Corporation (NSWLHC). The agreement was for a fixed term ending 9 December 2018 and thereafter continued as a periodic agreement.
The tenancy agreement is a social housing tenancy agreement. Initially the rent was $250.00 per week.
On 15 May 2024 the tenant lodged an application with the Tribunal seeking orders against 'DJC trading as NSW Land and Housing Corporation', including orders for repairs, a rent reduction, compensation and reimbursement of repair costs.
On or about 19 May 2024 the ownership of the residential premises was transferred to the Aboriginal Housing Office (AHO) by Ministerial Order.
The tenant's application was listed for hearing on 2 September 2024 and was adjourned. The Tribunal ordered the name of the respondent be amended to the Aboriginal Housing Office.
The application came before the Tribunal for final hearing on 25 October 2024. The tenant appeared in person, assisted by her sister Ms Shaw. Ms Hook appeared on behalf of the landlord.
By amendment of the original application, the Tenant sought the following orders:

(1) A retrospective rent reduction of fifty percent of the rent payable for a period of twelve months to the date of the hearing calculated at $4,266.05, based on the landlord's failure to maintain the premises in a properly safe and habitable condition;

(2) Reimbursement of expenses for fence repair and cleaning of mould from the exterior of the premises in the amount of $1,627.84; and

(3) Compensation in the amount of $15,000.00 for non-economic loss for loss of enjoyment which manifested in stress and anxiety due to the landlord's breach of the residential tenancy agreement.

On 13 January 2025 the Tribunal delivered its decision with written reasons. It made the following orders:

"1 The time for filing of the Tenant's application as it relates to compensation for non economic loss is extended to 15 May 2024.

2 The whole of the application is dismissed after hearing."

In its reasons for its decision the Tribunal found that there had not been a reduction or withdrawal by the landlord of any goods, services or facilities because:

(1) It was not satisfied that there was a defect with the hot water service, noting that the only evidence relied on by the tenant was her own oral evidence;

(2) It was not satisfied that the tenant complained to the landlord about the hot water after the hot water service was replaced by the landlord;

(3) In relation to the other outstanding repairs, nothing more than minor repair and maintenance was required, consistent with the age of the building.

The Tribunal declined to make an order to reimburse the tenant for the cost of repairing a boundary fence and cleaning mould because, with reference to s 65 of the RTA, it found those repairs did not fall within the definition of 'urgent repairs' in s 62 of the RTA.
The Tribunal dismissed the tenant's claim for compensation because:

(1) The tenant is required to establish on the evidence that the landlord breached a term of the residential tenancy agreement that has caused foreseeable loss;

(2) Section 63 requires a landlord to maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for, and prospective life of the premises,

(3) There was not a failure by the landlord to meet their obligations under s 63 for the following reasons:

"Whilst the evidence of the Tenant does, in the Tribunal's view, establish on the balance of probabilities that the Landlord has failed to repair a number of issues complained of by the Tenant, it does not establish that those grievances were of a kind that, if left unattended, would be in breach of the Landlord's obligations under either the RTA or the Residential Tenancy Agreement. Nor does the evidence establish any historic instances of breaches of that kind.

If the expert reports relied on by the parties establishes (sic) anything, it is that the unrepaired issues complained of are relatively minor, are typical of the kind found in any tenancy of the age and type occupied by the Tenant, and which left unattended to, would not result in a breach of the Landlords obligations arising from s 63 RTA. (at [48] - [49])"

The Notice of Appeal was lodged on 7 February 2025. It states that the tenant received the Tribunal's decision on 14 January 2025.
The Notice of Appeal was therefore lodged 10 days outside the 14-day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).
Section 41 of the NCAT Act allows the Appeal Panel to make an order extending time for the filing of the appeal, if satisfied that leave should be granted.
The relevant principles which generally inform the exercise of the 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 the 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:

"It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."

The landlord opposes an extension of time, '[n]otwithstanding the fact that the Appellant was out of time by only 10 days' (submissions at [25]). The landlord contends that the tenant's reasons for the delay are unpersuasive and that she does not have a fairly arguable case.
The tenant's explanation for her delay is that she suffers from a number of disabilities which "severely impacts my ability to process new information and respond to it, especially in written form". According to the tenant those disabilities include Autism Spectrum Disorder - Level 2 ('ASD'), Post-Traumatic Stress Disorder, Major Depressive Disorder, Generalised Anxiety Disorder, Social Anxiety, Gender Dysphoria, Attention Deficit Hyperactivity Disorder ('ADHD') and Dyslexia.
The tenant relies on letters from two doctors. Those letters must address the critical question of whether, and if so why, the alleged medical condition(s) prevented the tenant filing the Notice of Appeal within 14 days (see Bobolas v Waverley Council [2016] NSWCA 139 per McColl JA (Simpson JA and Sackville AJA agreeing) at [221]).
The letter from the tenant's psychiatrist, Dr Popov, dated 29 May 2024, says:

"Amanda has a formal diagnosis of ADHD and ASD. These were diagnosed in childhood and symptoms are ongoing and active.

Both conditions significantly impair Amanda's ability to seek paid work, socialise in community and organise administrative tasks.

Stable and safe housing is required to manage symptom control of both ASD and ADHD. These conditions are incurable and life-long. Current treatment only moderately manages small selection of symptoms.

I do not believe that Amanda will substantially improve in the next two years and therefore recommend that she receives NDIS supports to assist with above activities and stable, safe housing."

The letter supports the diagnosis of ASD and ADHD. While dated more than 12 months ago, the Appeal Panel notes the psychiatrist's opinion that those conditions are incurable and would not improve substantially over the next 2 years.
While the tenant's ASD and ADHD significantly impact her ability to organise administrative tasks, the letter does not specifically address the delay in lodging the Notice of Appeal.
The letter from Dr Dorward dated 3 April 2025 confirms the other diagnoses, but does not explain their impact on the tenant's ability to lodge the Notice of Appeal.
While the letters confirm the tenant's diagnoses, they do not address the critical question of the delay and therefore we put limited weight on them. We consider the explanation for the delay given by the tenant to be less than satisfactory.
Nevertheless, on balance, we are satisfied that an extension of time should be granted for the filing of the appeal because:

(1) The delay was relatively short;

(2) As we explain below, the tenant's case has more substantial merit than merely being fairly arguable;

(3) The landlord has not provided any submission regarding prejudice it has incurred due to the delay.

In the exercise of our discretion, we allow the tenant an extension of time to 7 February 2025 to lodge the Notice of Appeal.

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

(1) The Notice of Appeal lodged on 7 February 2025;

(2) New evidence lodged with the Notice of Appeal, being 8 photographs of the premises dated after the Tribunal hearing and a Personal Impact Statement dated 6 February 2025;

(3) The Reply to Appeal lodged on 9 May 2025;

(4) The tenant's submissions lodged on 9 April 2025;

(5) The landlord's evidence (3 volumes) lodged on 14 May 2025 and 16 May 2025;

(6) The landlord's submissions lodged 30 May 2025;

(7) The tenant's Personal Impact Statement dated 10 June 2025;

(8) The tenant's response to the landlord's submissions dated 10 June 2025.

Both parties confirmed at the hearing that they had received copies of those documents.
Subsequent to the appeal hearing, and pursuant to our orders, the parties provided written submissions on the issue of the transfer of the residential premises to the AHO. We have also had regard to those submissions.

The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. An appeal must be against an internally appealable decision of the Tribunal: NCAT Act, s 80(1). A general decision of the Tribunal is an internal appealable decision: NCAT Act, s 32(1)(a) and (4). A decision of the Tribunal under the RTA Act is a general decision and therefore an internally appealable decision: NCAT Act, s 29(1); Dubroja v Kabir [2025] NSWCATAP 162 (Dubroja) at [36]. Section 80(2)(b) 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".

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. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32], including a failure to provide adequate reasons for a decision However, 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 ...

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."

Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Tribunal in the Consumer and Commercial Division pursuant to section 80(2)(b) of the NCAT Act, only if it is 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).

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 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."

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 applicant 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."

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). An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
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]).

The appellant is self-represented. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

However, as the Appeal Panel stated in Udy v Barton [2025] NSWCATAP 117 at [48], citing Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [45]:

"the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel."

In the Notice of Appeal, the tenant states she is seeking leave to appeal on the basis that the decision was not fair and equitable; against the weight of evidence; and that significant new evidence is now available that was not reasonably available at the time of the hearing.
The Notice of Appeal identifies 8 grounds of appeal which we summarise as follows:

(1) The Tribunal erred in its application of s 44 of the RTA;

(2) The Tribunal erred in its application of s 62 of the RTA because the presence of sinkholes and black mould directly impacts the safety and security of the premises;

(3) The Tribunal erred in its finding that the landlord did not breach s 63 of the RTA because it failed to apply the relevant principles in Northern Sandblasting Pty Limited v Harris [1997] HCA 39; (1997) 188 CLR 313 (Northern Sandblasting);

(4) 'Unreasonable disregard' of evidence regarding non-economic loss;

(5) The Tribunal denied the tenant procedural fairness by refusing her the opportunity to make oral submissions;

(6) The landlord did not comply with the Tribunal orders of 20 May 2024 requiring urgent make-safe repairs and did not provide an engineer's report confirming the premises' safety;

(7) The Tribunal failed to consider the evidence of asbestos in the premises, a critical safety hazard and breach of s 63;

(8) Significant new evidence is now available that was not reasonably available at the time of the hearing.

Grounds 3, 4 and 7 relate to the alleged breach of s 63 and consequential damage. We consider those grounds together, below.
The tenant also contends that the Tribunal erred in amending the name of the respondent from NSWLHC to the AHO. We address this below.

(1) It opposes leave being granted and the Notice of Appeal did not provide reasons as to why leave should be granted;

(2) The decision was fair and equitable and not against the weight of evidence;

(3) The new evidence was reasonably available at the time of the hearing;

(4) There was no error of fact or law;

(5) The Tribunal did not misapply statutory provisions;

(6) The Tribunal and the parties did not unreasonably assess the evidence.

If successful in the appeal the tenant seeks the following orders:

(1) Leave to appeal under s 80(2)(b) of the NCAT Act;

(2) Setting aside of the Tribunal's orders dated 13 January 2025;

(3) Remittal of the matter for rehearing or alternatively, orders granting:

(a) Retrospective rent reduction of $4266.05

(b) Reimbursement of $1627.84 for repairs

(c) Compensation of $15,000.00 for non-economic loss

(d) A declaration that the respondent breached the Tribunal's amended order dated 20 May 2024

(e) An order compelling the respondent to produce a structural engineer's report verifying the premises' safety, as required by the Tribunals notation

(f) Compensation for accommodation expenses and aggravated non-economic losses arising from the respondents' non-compliance

(g) An order correcting the name of the respondent to NSW Land and Housing Corporation in all Tribunal records

(h) A declaration that all obligations (eg repairs, compensation) arising from the Tribunals orders bind NSW Land and Housing Corporation as the lawful landlord

(i) Conduct immediate asbestos remediation under s65(1)(a) RTA

(j) Compensate the applicant for relocation costs, medical monitoring, and non-economic loss.

"44 Tenant's remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders -

(a) ...

(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

...

(4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive -

(a) the general market level of rents for comparable premises in the locality or a similar locality,

(b) the landlord's outgoings under the residential tenancy agreement or proposed agreement,

(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d) the state of repair of the residential premises,

(e) the accommodation and amenities provided in the residential premises,

(f) any work done to the residential premises by or on behalf of the tenant,

(g) when the last increase occurred,

(h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent).

(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent -

(a) has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable."

In Mulcair v Callum [2024] NSWCATAP 30 (Mulcair), the Appeal Panel at [52] to [56] said:

"There is no reason to confine the operation of s 44(1)(b) to goods or facilities falling into disrepair after the residential tenancy commences. ... The use of the word "provided" suggests a comparison is to be made between of what is provided with what was promised. ... where promised goods, services or facilities are never provided or where goods and facilities provided are in a state of disrepair at commencement of the residential tenancy agreement, the act of failing to supply at all or supplying in a state of disrepair or in a limited fashion and not taking corrective action may, itself, constitute a relevant reduction or withdrawal from that which was promised under the residential tenancy agreement."

In Mulcair at [29] the Appeal Panel highlighted that:

"An application under s 44(1)(b) of the RTA needs to be considered in the context of the landlord's general obligations under the residential tenancy agreement in question, including obligations concerning repairs and maintenance and ensuring the premises are fit for habitation." (emphasis added)

Relevantly to this appeal, the landlord has a general obligation to provide residential premises that are reasonably secure (s 70(1)). The physical characteristics of the premises is a relevant consideration in determining whether the landlord has complied with that obligation (s 191(2)(a)).
Section 52 relevantly provides:

"52 Landlord's general obligations for residential premises

(1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

(1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises -

(a) are structurally sound, and

(b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and

(c) have adequate ventilation, and

(d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and

(e) have adequate plumbing and drainage, and

(f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and

(g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user.

(1B) For the purposes of subsection (1A)(a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings -

(a) are in a reasonable state of repair, and

(b) with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and

(c) with respect to the roof, ceilings and windows - do not allow water penetration into the premises, and

(d) are not liable to collapse because they are rotted or otherwise defective.

...

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

The question of whether or not residential premises are 'habitable' turns on whether the premises "might be used and dwelt in not only with safety but also with reasonable comfort" by the tenants (Proudfoot v Hart (1890) 25 QBD 420), judged by contemporary standards (Menashi v Ly [1997] NSWRT 162). That test was affirmed by the Appeal Panel in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [117].
Section 63 provides:

"63 Landlord's general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part.

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

The obligation requires a 'reasonable' state of repair, not a perfect state of repair.
The landlord's obligation to repair arises after the landlord has been put on notice of the need to repair. Once notice is received by the landlord, a breach of section 63 will only occur if the landlord fails to carry out any necessary repairs within a reasonable time (Northern Sandblasting).
In Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 McClellan J considered what constituted goods, services and facilities in respect of a similar provision in the Residential Tenancies Act 1987 (NSW). His Honour said at [37]:

"As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement."

The reduction or withdrawal must be caused by the landlord.
In Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 the Appeal Panel recognised at [63] that where the landlord has notice or ought reasonably be aware of the need for repairs but fails to act with reasonable diligence to have the repair carried out, an act or omission by the landlord giving rise to the state of disrepair can amount to a reduction or withdrawal of goods, services or facilities.
In Mulcair at [34]−[35], the Appeal Panel explained the interaction of the relevant legislative provisions:

"... the age etc of the premises, which is relevant to the obligation to repair (see s 63(1)), does not displace the obligation of a landlord to provide premises in a reasonable state of cleanliness and fit for habitation by a tenant as required by s 52(1) of the RT Act.

Rather, the obligations under ss 52 and 63 need to be considered together in determining whether there has been a relevant reduction in goods, services or facilities in the residential premises."

Consideration - Did the Tribunal err in its application of s 44 of the RTA?

The tenant contends that the Tribunal's interpretation of s 44 is narrow and:

"... ignores the principle in Bannister v Cheung [2014] NSWCATCD 105, which emphasizes that habitability is assessed holistically. Multiple safety hazards (e.g., trip risks. Insecure doors) cumulatively reduce the premises' value, warranting rent reduction under s 44(5)(d)-(e) RTA."

The respondent submits that there has been no misapplication of s 44.
We consider that this ground raises a mixed question of fact and law because it necessarily involves an assessment of the facts (whether there were multiple defects which amounted to a reduction or withdrawal of goods, facilities, or services). This is not a question of law and leave is required: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39]; Cusumano at [25].
In its reasons in the present decision, the Tribunal at [17] listed the alleged faults which the tenant identified in her oral submissions. She claimed that many of the faults posed safety hazards.
As we explain below, the expert evidence supports the existence of 3 faults that are safety or security risks: the uneven bathroom floor, the back door and cracked external concrete.
One expert report by Julian Hurrell was based on an inspection of the premises on 5 September 2024 ("the Built Consultancy Report"), and the other by David Teasel was based on an inspection on 17 June 2024 ("the Affordable Inspection Report"). The Tribunal stated that:

"Notably, the authors of both reports have been licensed builders for approximately 20 years." (at [25])

The Tribunal noted that, according to the Build Consultancy Report, relevantly:

(1) The rear door of the premises is misaligned in a way that may impact security;

(2) The bathroom floor is uneven with a step that poses a potential trip hazard;

(3) There were sinkholes in the yard that required further investigation.

A report by Central Coast Facility Management ("CCFM report") was also before the Tribunal. It is based on an inspection conducted on 3 June 2024. In relation to the external concrete paths it states:

"Extensive cracks and uneven surfaces, identified as trip hazards."

The evidence before the Tribunal, including the expert reports, did not identify any other faults, including the sinkholes, as a safety risk. There was no evidence before the Tribunal that the tenant or any other person suffered injury due to the sinkholes or other faults. The tenant's subjective opinion that they are a safety risk is not evidence.
The Tribunal also referred to other issues of disrepair identified by the experts. Based on the expert evidence, the Tribunal characterised those issues as minor and not posing a safety risk.
The Tribunal found that there had not been any reduction or withdrawal by the landlord of goods, services or facilities:

"Overall, it is the Tribunal's view that the expert reports describe a building which is in sound structural condition and which requires nothing more than minor repairs and maintenance consistent with any residential building typical of its age and type." (at [29])

For the following reasons we consider that the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable and/or against the weight of evidence:

(1) The Tribunal had before it expert evidence of faults in the premises that posed security and safety risks;

(2) In the face of that evidence, the Tribunal did not consider the s 44(1)(b) application in the context of the landlord's general obligations under the residential tenancy agreement, including the obligation to provide residential premises that are reasonably secure, and fit for habitation, specifically that the premises can be used and dwelt in safely; and

(3) The age of the premises does not displace those obligations.

We are satisfied that there is a significant possibility that a more favourable result would have been achieved had the decision not been against the weight of evidence and/or not fair and equitable, because:

(1) There was documentary evidence before the Tribunal that the tenant had notified the landlord of the need to repair the door, the bathroom floor and cracked paths in 2014 and/or 2017;

(2) It was open to the Tribunal therefore to find that the landlord failed to act with reasonable diligence to have the repairs carried out, which could amount to a reduction or withdrawal of goods, services or facilities;

(3) Even if the faults were present at the commencement of the tenancy, supplying the facilities in a hazardous and insecure state and not taking corrective action may constitute a reduction or withdrawal from that which was promised under the residential tenancy agreement.

We are also satisfied that it is appropriate to exercise our discretion to grant leave to appeal in relation to this ground because the error involves an injustice which is reasonably clear.

Consideration - Did the Tribunal err in its application of s 62 of the RTA?

The tenant contends that in dismissing her claim for reimbursement of the costs of rectifying a boundary fence and the cleaning of mould from the exterior of the premises, the Tribunal erred by holding that those repairs fall outside the definition of urgent repairs in s 62.
The respondent submits that there has been no misapplication of s 62.
This ground raises a mixed question of fact and law because it necessarily involves an assessment of the facts, i.e., whether sinkholes and black mould were present and, if so, whether they impact the safety of the premises. Leave is required.
Section 62 provides relevantly:

"urgent repairs means any work needed to repair any one or more of the following -

...

(k) any fault or damage that causes the residential premises to be unsafe or insecure,

..."

"The presence of sinkholes and black mould directly impacts the safety and security of the premises, engaging s 62(k) ..."

The relevance of sinkholes to a claim regarding the fence and mould is not apparent to us. However, as we have noted above, the evidence before the Tribunal did not support a finding that the sinkholes are a safety risk.
On the evidence before it, we consider that the Tribunal could reasonably find that rectifying a boundary fence and the cleaning of mould are not urgent repairs within the definition of s 62:

(1) The Affordable Inspection Report did not note the presence of mould and stated that the condition of the exterior walls is 'generally good'.

(2) The Built Consultancy Report confirms the presence of mould on one wall, but opines it is unlikely to be hazardous:

"Without further testing, it is difficult to determine the exact type of mould, but based on visual inspection, it appears to be minor and unlikely to pose serious health risks ..."

(3) The tenant contends that her small dog could not be left in the back yard safely because of holes in the fence. There was no evidence before the Tribunal that the condition of the fence poses a safety or security risk to the tenant or other (human) person.

For all these reasons we dismiss the appeal in so far as it relates to this ground.

Consideration - Did the Tribunal err in its determination of the s 63 claim?

We now consider grounds 3, 4 and 7 which relate to the tenant's claim pursuant to s 63 of the RTA, i.e., whether the Tribunal erred by: failing to address the presence of asbestos; by finding the landlord did not breach s 63; and by unreasonably disregarding the evidence of non-economic loss.

(1) Asbestos 'may' be present in the internal wall sheeting and it should not be disturbed and be kept well maintained and sealed;

(2) The eaves are lined with asbestos cement and/or fibre cement sheeting and the paintwork is deteriorating.

The Built Consultancy report - the stated purpose of which was, inter alia, 'to assess the overall safety' of the premises - referenced those observations by Affordable Inspection but did not state whether asbestos was present, did not make any recommendations regarding asbestos, and did not identify it as a safety concern.
The CCFM report did not make any reference to asbestos.
Therefore, the evidence before the Tribunal did not support a finding on the balance of probabilities that asbestos is present in the internal wall sheeting.
The eaves are lined with asbestos cement, or they are lined with fibre cement, or both. This does not support a finding on the balance of probabilities that asbestos is present in the eaves.
Certainly, there was no evidence before the Tribunal to support a finding that any asbestos is a 'critical safety hazard', as the tenant contends, or likely posed any hazard, even considering the deteriorating paintwork on the eaves.
Nor did the evidence before the Tribunal support a finding that the landlord has a positive duty to investigate or test for the presence of asbestos.
We conclude that even if the Tribunal had explicitly addressed the issue of asbestos, the tenant did not suffer a substantial miscarriage of justice. We dismiss the appeal on this ground.

Did the Tribunal err by finding that the landlord did not breach s 63?

At [45] the Tribunal accurately summarised the principle in Northern Sandblasting:

"... there can be no breach found of the landlord's obligation to repair ... unless the landlord was, or should reasonably have been, aware of the need for repairs and fails to conduct those repairs in a reasonably timely manner..."

The Tribunal referred to documentary evidence that confirmed the tenant's complaints to the landlord about outstanding repairs, commencing at the start of the tenancy in 2014.
At [48] the Tribunal said:

"Whilst the evidence of the Tenant does ... establish on the balance of probabilities that the Landlord had failed to repair a number of issues complained of by the Tenant, it does not establish that those grievances were of a kind that, if left unattended, would be in breach of the Landlord's obligations ... Nor does the evidence establish any historic instances of breaches of that kind."

This conclusion should be considered together with the Tribunal's finding at [29] that the outstanding repairs were "consistent with any residential building typical of its age and type."
As the Tribunal's reasons record, there were multiple repair faults raised by the tenant.
We consider that the Tribunal fell into error because;

(1) Whist finding that the landlord "had failed to repair a number of issues complained of", the Tribunal did not specify which of the faults the landlord had failed to repair;

(2) It did not make a finding as to whether the landlord failed to conduct repairs within a reasonable time, as per Northern Sandblasting;

(3) The Tribunal therefore did not provide its findings, nor the reasoning process, to support its conclusion that the evidence did not establish that the outstanding repairs 'were of a kind that, if left unattended, would be in breach ...' (see NSW Land and Housing Corporation v Orr [2019] NSWCA 231)

While a failure to provide adequate reasons is likely an error of law, to the extent necessary we grant leave to appeal on this ground because we are satisfied that there is a significant possibility that a more favourable result would have been achieved had the Tribunal not erred:

(1) Whilst regard must be had to the age of the premises in determining whether the premises are provided and maintained in a reasonable state of repair (s 63(1)), in relation to the bathroom floor, back door and cracked concrete, the security and safety risks those items pose would also be relevant in determining the reasonableness of the state of repair of those items;

(2) Given the tenant provided notification in 2014 and/or 2016, it was open to the Tribunal to find that the landlord failed to respond to reports of repairs to the bathroom floor, back door and cracked concrete in a timely manner, in breach of s 63.

We are also satisfied that it is appropriate to exercise our discretion to grant leave to appeal in relation to this ground because the error involves an injustice which is reasonably clear.
We allow the appeal on this ground.

Did the Tribunal fail to consider evidence regarding non-economic loss?

The basis for the Tribunal dismissing the tenant's claim for non-economic loss was that the tenant did not prove a breach of s 63 to found a compensation claim.
Given we have decided that the Tribunal erred in dismissing the claim pursuant to s 63 and we have allowed the appeal on that ground, the tenant's claim for compensation should be reconsidered.
Further, the tenant's submissions before the Tribunal stated:

"I am seeking to be compensated an amount of $15000 due to the ongoing disruption to my peace, comfort and quiet enjoyment of the premises. I have been living in a state of disrepair ..."

The submissions then detail the disruption to the tenant's enjoyment of the premises, including excessive cleaning, fears for her safety and the "constant back and forth with housing..."
The tenant's claim for non-economic loss was therefore based on the alleged breach of her right to quiet enjoyment. Section 50 of the RTA provides relevantly:

"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.

..."

The Tribunal, however, did not address the alleged breach of s 50. Therefore, a material issue presented for determination was not resolved. This is a constructive failure to exercise jurisdiction by the Tribunal and an error of law.
We allow the appeal on this ground also.

Consideration - Did the Tribunal deny the tenant procedural fairness by refusing her the opportunity to make oral submissions?

If made out, this ground raises an error of law, and an appeal may be brought as of right.
The problem for the tenant is that she did not provide the Appeal Panel with a transcript or sound recording of the hearing on 25 October 2024.
The tenant was directed by order 2(d) made by the Appeal Panel on 5 March 2025 to lodge with the Appeal Registry and give to the respondent 'a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing' by 9 April 2025.
In the absence of the tenant lodging the sound recording or transcript, we are not able to determine whether the tenant was denied the opportunity to make oral submissions.
The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]- [26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]- [27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]- [28].
Therefore, we dismiss the appeal so far as it relates to this ground.

Consideration - Is significant new evidence is now available that was not reasonably available at the time of the hearing?

The relevant principles were recently enunciated by the Appeal Panel in The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 (JPG Investments) as follows at [167], [168] and [170]:

"An appellant does not have an unfettered right to adduce fresh evidence about events that have occurred subsequent to the hearing. As the Appeal Panel stated in Chapman v McLaughlin [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.'

The ability to adduce fresh evidence arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, the Tribunal must be satisfied that the appellant suffered a "substantial miscarriage of justice" in the sense there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the fresh evidence of Mr Clee had been before the Tribunal at first instance (Collins v Urban at [76]-[79]).

...

The purported new evidence must not only be "significant," but it must also be evidence that was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence" (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23])."

Here the new evidence consists of a Personal Impact Statement dated 6 February 2025, and 6 photographs taken in December 2024 and 2 taken on 16 January 2025, after the Tribunal hearing. We understand it was the tenant who took the photographs and labelled them as follows:

(1) Photo of the under back of the bedroom floor of the temporary repair

(2) Photo of the under-bathroom floor of the asbestos falling-off

(3) Photo of tile cracked and peeling above the bathroom basin

(4) Photo of a worsening crack in the ceiling of the kitchen

(5) Photo of makeshift measure to secure the back door

(6) Photo of increasing gap between chimney and house

(7) Photo of rubbish left by contractors in July 2024

(8) Photo of rear back corner of house (kitchen) showing further sinking of foundations

For the following reasons we are not satisfied that our discretion to grant leave on this ground is enlivened:

(1) To the extent that the Personal Impact Statement and photographs were produced after 25 October 2024, that evidence could not have been before the Tribunal at the hearing. Accordingly, it cannot be said that had that evidence been before the Tribunal at the hearing, there was a "significant possibility" or "chance that was fairly open" that a different and more favourable result would have occurred;

(2) The hearing occurred on 25 October 2024. The decision was reserved. The decision was published on 13 January 2025. If the tenant sought to adduce the fresh evidence about the condition of the premises after the hearing, she could have sought leave to re-open her case in relation to the 6 photographs taken in December. She failed to do so;

(3) The labels explaining the photographs were not produced by an expert with appropriate qualifications and experience. The tenant is not a builder, nor a qualified asbestos assessor. Her personal interpretation of the photographs carries minimal weight, including her description of asbestos falling from under the floor. Accordingly, we are not persuaded the new evidence is significant.

We dismiss the appeal so far as it relates to this ground.

The landlord's alleged failure to comply with the Tribunal orders of 20 May 2024

This ground concerns the landlord's alleged failure to comply with an earlier order of the Tribunal.
It does not raise an error regarding the Tribunal's decision under appeal. Accordingly, we have not given it consideration.
However, we note that ascertaining the meaning of an order of a court or tribunal is an objective exercise. The Appeal Panel in Dubroja cited with approval the Victorian Court of Appeal in Laming v Jennings [2018] VSCA 335 at [123]:

"The meaning of a court order is to be derived from the language used, read fairly. The exercise is objective and does not involve delving into the subjective thought processes of the judge who made the order. At least in the case of ambiguity or where the language is susceptible of more than one meaning, it is open to have recourse to extrinsic material, including the reasons for judgment. Of course, the exercise remains one of interpretation and not reconstruction, and where recourse to such material is permitted, it is not admissible to contradict the plain meaning of the order."

An objective reading of the orders of the Tribunal issued 17 May 2024 does not support an interpretation that the Tribunal required the landlord to obtain a structural engineer's report to verify the safety of the premises.

The tenant contends that the Tribunal erred in amending the name of the respondent from the NSWLHC to the AHO and seeks orders to address that alleged error.
In brief, the tenant argues that she signed a tenancy agreement with the NSWLHC. She does not appear to contest that the transfer to the AHO took place but submits that she did not consent to the transfer and the transfer is invalid as it "breaches anti-discrimination laws, privacy laws, and tenancy rights".
The tenant seeks to have the transfer 'set aside'. The Tribunal does not have jurisdiction to make such an order.
The tenant has named the NSWLHC as respondent to this appeal.
The respondent submits that because of the transfer of ownership, the name of the respondent to this appeal should be amended to the AHO.
The respondent points to a ministerial order made under cl 3 of Sch 3 to the Aboriginal Housing Act 1998 (NSW) with effect from 20 May 2024. The order directed the transfer of various properties owned by the NSWLHC to the AHO. Among those properties was the property leased by the appellant. Clause 5(1)(a) of Sch 3 operated to vest the property in the AHO by virtue of cl 5 without the need for any conveyance, transfer, assignment or assurance. In addition, cl 5(3) operated so that no attornment to the AHO by the appellant as a lessee of the NSWLHC was required.
The Appeal Panel is satisfied that ownership of the premises, together with the associated rights and responsibilities of the tenancy agreement, was transferred to the AHO regardless of whether the appellant consented to the transfer.
The landlord, and therefore the respondent to these proceedings, is properly the AHO.
We order that the name of the respondent is amended accordingly.

(1) The time for filing the Notice of Appeal is extended to 7 February 2025;

(2) The name of the respondent is amended to the Aboriginal Housing Office;

(3) Leave to appeal is granted in part;

(4) The appeal is allowed in part;

(5) The orders made by the Tribunal on 13 January 2025 to dismiss the tenant's application for compensation for non-economic loss and for a rent reduction are set aside;

(6) The tenant's application for compensation for non-economic loss and rent reduction is remitted to the Tribunal, differently constituted, to be determined in accordance with the law and with such further evidence as the Tribunal decides;

(7) The appeal is otherwise dismissed.

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

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.

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Thompson v Aboriginal Housing Office

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