Trantalles v Mock

The nature of an appeal

1. At the outset of the appeal hearing, we explained to the parties a number of principles that are applied in appeals.
2. The first principle is that an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
3. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
4. The second principle is that the applicable rule for presenting new evidence on appeal is that the materials sought to be relied upon were not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

The grounds of appeal

1. The appellant was self-represented throughout these proceedings and her grounds of appeal as written in her Notice of Appeal were understood as a lay person's attempt to explain what errors she alleged occurred in the decision below.
2. During the appeal hearing, the appellant refined her appeal to being on two bases only. These were: 1. The Tribunal erred in its interpretation of Reg. 39(9); and 2. The appellant suffered a substantial miscarriage of justice because the decision to dismiss the appellant's claims for compensation were against the weight of evidence and were not fair and equitable.
3. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds: s.80(2)(b). It also states that leave of the Appeal Panel is required in the case of an interlocutory decision of the Tribunal at first instance.
4. The first ground of appeal, that the Senior Member misinterpreted the law, is an appeal on a question of law but the decision not to extend time is an interlocutory decision so the appellant requires leave, or permission, of the Tribunal for this ground. The second ground of appeal, that the Decision was against the weight of evidence and/or was not fair and equitable is not an appeal on a question of law and also requires leave of the Appeal Panel. We will explain the requirements for leave to appeal when considering each of the two grounds below.

Evidence and submissions

1. The Appeal Panel made orders at a callover on 11 August 2023, including that the parties were to file and serve all "the evidence given to the Tribunal at first instance on which it is intended to rely" in the appeal and any "evidence not provided to the Tribunal at first instance" which the party intends to seek leave to rely in the appeal.
2. With the Notice of Appeal, the appellant filed her witness statement dated 11 April 2023 (April Statement) which was before the Tribunal, along with the annexures thereto. The April Statement and annexures totalled 25 pages. She also filed 29 more pages which comprise emails, photographs of possessions covered in mould and the first two pages of the residential tenancy agreement between the parties dated 20 July 2022.
3. On 1 September 2023 the appellant filed her written submission on the appeal along with the Mould Report (33 pages). The Mould Report is dated 26 December 2022 and its author is Russell Williams of Building Harmony Pty Ltd. Also provided on 1 September 2023 were dozens of (unpaginated) photographs depicting various items covered in mould.
4. The respondents did not understand the 11 August 2023 directions and did not file any evidence in the appeal. They did not seek an adjournment of the appeal and made oral submissions during the appeal hearing.

Consideration of Ground 1

1. This ground of appeal concerned how the Senior Member interpreted Reg 39(9).
2. Sub-regulation 39(9) of the Residential Tenancies Regulations 2019 (NSW) is: "For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach."
3. Subsection 190 of the RTA is: "A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations."
4. The Senior Member addressed the question of the extension of time on page 4 of the Decision: "The applicant requires an extension of time to bring a claim for breach of the tenancy agreement. Section 190(1) of the RTA permits an application to be made to the Tribunal for an order in relation to a breach of a residential tenancy agreement. Regulation 39(9) of the Residential Tenancies Regulation 2019 requires an application under s 190(1) to be brought within "3 months after the applicant becomes aware of the breach." The breach of the tenancy agreement of which the applicant complains is one which stems from, and of which she was aware since, at least March 2022. Accordingly, the applicant requires an extension of time of at least 12 months. Even to the extent that the breach alleged was an on-going breach so that an application brought within three months of the termination of the tenancy might be held to be within time, in respect of damages caused during the three months before the commencement of the proceedings (see Hundt v Kong [2018] NSWCATAP 156 at [27]-[43]; NSW Housing Corp v Tanious [2016] NSWCATCD 57 at [27]-[31] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91]), the application was out of time because it was filed more than three months after the termination of the tenancy."
5. The appellant submitted that the Member misunderstood the words "the applicant becomes aware of the breach" in Reg 39(9). The appellant submitted that an applicant becomes aware of a breach when the applicant possesses evidence that establishes the landlord committed a breach of the RTA, in her case meaning that the landlords breached s.52 or s.63 of the RTA. She submitted that this was when she received the mould report on 13 January 2023. The date of the mould report is 26 December 2022 based on an inspection conducted on 19 December 2022 which was three days before the appellant vacated the property.
6. The Senior Member said about the report: "The inspection took place on 19 December 2022. Mr Williams purports to be an expert in mould issues. Mr Williams provided a report on 26 December 2022. That report was in evidence": page 2 of the Decision.
7. In paragraph 7 of the appellant's April Statement the appellant said she received the report on 13 January 2023.
8. It does not matter whether the appellant received the report on 26 December 2022 or 13 January 2023 because if it is true that she became aware of the breach when she received evidence that she says established that the landlord breached the RTA it would not matter which of the two dates the appellant received the mould report because the application was filed on 23 March 2023 so both dates would make the application within time.
9. To be clear, the "breach" referred to in Reg.39(9) was the alleged breach of either s.52 or 63 by the landlord which led to the mould infestation. That is, failure to provide the rental premises fit for habitation - presumably when the tenancy commenced - as there were alleged structural defects within the building which led to mould infestation: s.53 RTA. The three structural defects were alleged to be (see page 6 of the appellant's appeal submissions and her oral submissions during the appeal hearing): 1. guttering and membrane design, 2. balcony drainage, 3. storage room and garage guttering.
10. In addition, and alternatively, the appellant alleged the landlord breached the RTA by failing to maintain the rental premises in a reasonable state of repair, contrary to s.63 of the RTA, by not rectifying the above three defects so as to prevent and address the mould infestation.
11. The appellant confirmed during the appeal hearing that the Senior Member was correct on page 2 when he summarised the facts including that the appellant raised the mould issue in June 2021 whereupon the agent arranged for a tradesperson to check the premises including taking moisture readings in June 2021. The appellant repeated that she complained about the mould infestation which she alleged was the landlord's responsibility to address, since June 2021.
12. Nevertheless the Senior Member found the "breach of the tenancy agreement of which the applicant complains is one which stems from, and of which she was aware since, at least March 2022": page 4. There were many emails between the appellant and the landlords' agent around January 2022 when the landlords serviced a notice of rent increase on the appellant. Thereafter the appellant made more complaints about the mould infestation and the property loss she claims she suffered as a result, most of which emails were sent in March 2022.
13. The Member took March 2022 as the date the appellant became aware of the alleged breaches of ss.52 and/or 63 of the RTA. The Member could have taken June 2021 as the starting date but the choice of March 2022 (expressed as "at least March 2022") shortened the length of extension the appellant needed by nine months.
14. The Member wrote, on page 4, that the appellant "requires an extension of time of at least 12 months." This is poorly expressed. What the Member meant was that the appellant required an extension of time to March 2023 which is 12 months after the appellant first became aware of the breach/es. The extension required is nine months as the appellant would have been within time had she lodged her application by 7 June 2022. By lodging on 23 March 2023 the appellant required an extension of time of over nine months. This is a long delay and a significant extension as it is four times longer than the statutory period provided in Reg. 39.
15. The appellant confirmed during the appeal hearing that she was not appealing the decision not to extend time as a failure of the Member to properly exercise his discretion. Her only point was the Member should not have taken "becomes aware of the breach" to mean the time the appellant found mould in her premises and sent correspondence to the landlords (via their agent) telling the landlords to address the mould because it is their responsibility (and hence a failure of the landlords to address the mould issue is a breach of their responsibilities). Essentially the ground of appeal is that the appellant did not need an extension of time and the Member's interpretation of Reg.39(9) that she did need an extension of time was an error of law.
16. The appellant was not able to take the Appeal Panel to any caselaw or other authorities which support her contention that she became aware of the breaches of the RTA when she obtained evidence that established breach by the landlord.
17. The respondent to the appeal submitted that the Senior Member correctly interpreted the law and there was no error.

Applicable legal principles

1. The Tribunal has the power to extend the time referred to in Reg.39(9) of the RT Regs pursuant to s.41 of the NCAT Act: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
2. A presiding Member has unfettered discretion to grant an extension of time but such direction must be exercised judicially. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, an application for extension of time to lodge an appeal was considered. The Appeal Panel set out relevant judicial considerations to be considered for extensions of time generally at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: …… (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) 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].
3. The considerations outlined in Jackson were recently affirmed in Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22. In that matter an extension of time was not granted. The Appeal Panel stated at [3] "the absence of prospects of success in the appeal was a strong factor in refusing leave to extend time to appeal".
4. Sears v Turner [2023] NSWCATCD 124 is a recent first instance decision considering an extension of time of Reg.39(9) so that a tenant could sue a former landlord, as here. The General Member said at [25]-[26] and [37]-[38] and [44]-[45]: "Landlords submitted that delays were very substantial and unreasonably long. Even if one accepted that breaches were ongoing until 22 October 2022, which was not accepted, the application had not been lodged for 9 months, not 3 after the end of the tenancy. Further, it was argued that the evidence showed the last time the tenant notified any need for repair was on 5 May 2020. If the landlords had failed to carry out this repair in breach of their obligations, the tenant ought to have been being aware of the breach since that date and ought to have lodged within 3 months of that date. Instead, the application date was nearly 3 years after. This was unreasonably long delay and time should not be extended. A perusal of the 5 May 2020 text notification (page 61 tenant documents) refers to repairs required for a power box, hot water, lights inoperable and leaking taps in bathroom. Landlords submitted there was no mention of the water ingress or structural unsoundness for which the tenant claimed in this application. In addition, landlords gave evidence that the issues raised in the repairs were repaired on 22 May 2020. An invoice full repairs carried out by a qualified plumber shows works were done to leaking taps and a valve causing issues for the hot water system (page 46 landlord documents). … …the Tribunal does not accept the submission the time issue only runs from 3 months after vacant possession so that delay was only a matter of some 4 to 5 months. The parties referred to evidence limited to 2 dates in their submissions on time extension, being 5 May 2020 and 22 February 2022. As mentioned above, in the authorities cited in relation to extensions of time [state] than an important consideration in deciding whether to grant an extension is the strength or prospects of success of the party seeking the extension. To establish what evidence would have been relied on in the substantive case, and the prospects of success based on that evidence, the member presiding reviewed other documents and evidence of the parties not directly referred to in oral submissions of either representative. … The wording of the legislation in relation to time is specific. Regulation 39(9) states for compensation for breach of the agreement must be lodged is within 3 months after the applicant becomes aware of the breach. Use of the "becomes aware" in the legislation suggests the time runs from when the tenant first became aware of the breach or at least in some temporal period around that time unless evidence can show why nothing was done around that time. The Tribunal finds that the tenant first became aware, or ought [to] have become aware on her own case of the breach on which she relies long before the date of vacant possession as submitted by her. Even if one accepts the tenant's position that the need for repair was notified on 22 February 2022, time would have run from 22 May 2022. In other words, the tenant did not launch the application for over 12 months… But in the absence of any text message showing notification of the repair on 22 February 2022, the Tribunal accepts the landlords' submission that the last notification they had of the need for repair was on 5 May 2020. Consequently, time under the three-month limitation ran from 5 August 2020. The delay in bringing the application was nearly three years, not 3 months as allowed."
5. Another first instance decision that considered a tenant's application for compensation under s.187 is Krystal Stocks and Grant Morehead; v Kylie Jackson [2014] NSWCATCD 242. The Senior Member explained at [47]-[51]: "The tenants evidence is quite clear that they became aware of the odour issue which they regarded as a breach of the residential tenancy agreement as early as the first week of their tenancy [July 2012] culminating, after a significant amount of correspondence with the landlord's agent and their investigation, in them moving out of the premises on 23 July 2013 to avoid the odours which by that time they alleged were affecting their health. When did the tenants become aware of the breach that there was an alleged reduction in the facility of the premises? On the tenants' evidence, that was as early as 26 July 2012 and at its latest 23 July 2013. That is, the latest they could have commenced their application was 23 October 2013. The tenants chose not to commence proceedings for orders relying on their attempts to have the builder of the premises and its advisors to resolve the matter to their satisfaction. It was always open to the tenants to commence proceedings at anytime during their tenancy and in any case before 23 October 2013 at the latest. They admit in their submissions that with the benefit of hindsight they would have commenced the action sooner. The tenants did not file their application until 13 December 2013 believing that the time limit of 3 months commenced on the day that they vacated the premises following termination of the residential tenancy agreement. On the face of it the tenants have failed to commence their application for orders within the time prescribed by the Act and regulations."
6. Bates v Lien [2015] NSWCATCD 98 is yet another first instance decision considering a late application by a tenant for compensation against a former landlord. Senior Member French explained at [9]-[11]: "…the Residential Tenancies Regulation 2010 provides that the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement is within three months after the applicant becomes aware of the breach. The tenant gave evidence to the Tribunal to the effect that he knew about the breaches he alleges for the whole of the period of the tenancy. He says he complained about the alleged breaches to the landlord's Managing Agent on numerous occasions, but nothing was done to rectify the breach. He says that he did not make an earlier application to the Tribunal in relation to these alleged breach because he did not know about the Tribunal or its role, or of his right to do so, until he became involved termination of tenancy proceedings in April 2015. In short, he says he did not know he could do anything about these breaches. In these circumstances the tenant asks the Tribunal to extend the time in which his Application may be made to the Tribunal from on or about 27 February 2010 (three months after the commencement of the tenancy) up to 16 July 2015 when the Application was lodged with the Tribunal."
7. Member Levingston dealt with the issue of when the tenant became aware of the breach with characteristic brevity in Antonia Heyden v NSW Land and Housing Corporation [2014] NSWCATCD 74 at [6]: "The claim was filed 28 March 2014, but the applicant was aware of maintenance issues with the premises from about June 2013 which is when she became aware of the breach. Unless she obtains an extension of time, her claims are out of time under RTA s 190(1) and RTA cl 22(9)."
8. The Court of Appeal considered the phrase "first becomes aware of the loss" in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35. While this phrase arises in different legislation, namely the Strata Schemes Management Act 2015, the findings of the Court of Appeal are still instructive for present purposes, in particular at [41]ff: "41. The time limit in s 106(6) of the SSM Act commences to run from the point that the owner "first becomes aware of the loss". Accepting, as both parties did, that s 106(6) is directed to actions brought under s 106(5), "the loss" to which s 106(6) refers is the loss suffered as a result of the owners corporation's contravention of s 106(1). Consistently with the approach to statutory construction that strives to give every word of legislative provisions work to do (see, for example, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39], [41]-[42], [76] and [79]) the question posed by s 106(6) is, put simply: when did the lot owner first become aware of the loss that s 106(5) entitles a lot owner to recover (subject to establishing the elements of the cause of action) - here, loss of rent? 42… That provision refers to when the owner first became aware of the loss, not to when the owner first became aware the loss was reasonably foreseeable… 45. Both parties accepted that a breach of s 106(1) may be of a continuing nature. However, as Senior Counsel for the applicant submitted, it does not follow from acceptance of that possibility (which was the case here) that "the loss" occurs on a rolling basis so as to reset the point of first awareness. Senior Counsel for the applicant drew an analogy in this respect with cases such as Hawkins v Clayton (1986) 5 NSWLR 109 and Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289, which Austin J considered in Clutha Ltd v Millar [2002] NSWSC 362 ("Clutha"). Those cases, which concerned the limitation period for negligence in s 14(1)(b) of the Limitation Act 1969 (NSW) (which runs from when the cause of action first accrues), considered whether a fresh cause of action in negligence arose from a further loss suffered during the limitation period (so as to overcome the difficulty that the cause of action was otherwise time-barred). On the reasoning in those decisions, a fresh cause of action would only arise if a fresh breach caused loss going beyond the loss resulting from the barred cause of action: see Clutha at [29]-[36]. … 49. The construction of s 106(6) that I have adopted is consistent with its terms, read in the context of s 106 and in the broader context of the legislation of which it forms part. Applying that construction to the present case, the loss that the respondent suffered as a result of the owners corporation's breach of s 106(1) was lost rent. The time at which she first became aware of that loss was in 2016. The two-year period started to run from that point."
9. As the refusal to extend time is an interlocutory decision, an appeal to the Appeal Panel on this ground may only be made with the leave of the Appeal Panel: s.80(2)(a) NCAT Act.
10. In so far as leave to appeal is concerned, the principles applicable are by now well known. They were explained in Collins v Urban [2014] NSWCATAP 17 and have been applied in many authorities since. Ordinarily, it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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
11. Additionally, in Pholi v Wearne [2014] NSWCATAP 78 at [32] the Appeal Panel said: "Even if the Appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The Appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result."

Consideration of Ground 1

1. None of the above first instance or Appeal Panel decisions are binding upon us, but we agree with each of them. It can be seen that in all the cases that are similar to the present appeal, the Tribunal considered that the time the applicant "becomes aware of the breach" is when the applicant first knows about the problems or issues they allege amount to a breach of the residential tenancy agreement or RTA. If it is not the time when the tenant first becomes aware of the problem or issue itself, it is certainly when the applicant considers that problem or issue is one for which the landlord is responsible. Proof of this date can be adduced by correspondence in which the tenant complains to the landlord about the problem or issue. A tenant could not complain or raise a problem with a landlord unless the tenant considered it is the landlord's responsibility to address. What follows is that if the landlord does not address the problem the tenant can allege the landlord is in breach of one of their responsibilities under the residential tenancy agreement or RTA.
2. The appellant has not satisfied us that the Senior Member wrongly interpreted the words "becomes aware of the breach". The Member was correct to take "at least March 2022" as the date the appellant became aware of the mould issue being a breach of the residential tenancy agreement or RTA because it was from 7 March 2022 that the tenant was emailing the landlords (via their agent) complaining about the ongoing mould issue and the damage it was causing to her possessions (having already raised the issue in June 2021).
3. The Appeal Panel is not satisfied that this ground of appeal has been established and dismisses this ground of appeal.
4. Accordingly, as the appellant required leave to appeal on this ground, as the decision to extend time is an interlocutory decision, we would not have granted leave as the ground is baseless and cannot succeed. Therefore there does not arise an issues of principle, public importance, injustice, factual error or an unorthodox fact finding process.

Consideration of Ground 2

1. The Senior Member considered the merits of the appellant's claim against the landlord in order to decide whether to extend time under s.41 of the NCAT Act. The appellant claimed in this appeal that she suffered a substantial miscarriage of justice because the decision to dismiss the appellant's claims for compensation were against the weight of evidence and was not fair and equitable.
2. This ground requires the leave of the Appeal Panel: s.80(2) NCAT Act.
3. Leave will only be granted if the appellant can satisfy the test in cl.12 Sch.4 of the NCAT Act: (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (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).
4. The appellant submitted that the finding that "I am unable to be satisfied that the mould within the property was caused by the condition of the property or that the landlord was in breach of their obligations pursuant to ss 52 and/or 63 of the RTA" was against the weight of the Mould Report: Page 6 Decision.
5. The appellant took the Appeal Panel through the Mould Report noting where she said the Senior Member did not attach sufficient weight. These parts are summarised in the table at page 6 of the appellant's appeal submissions. The table on page 6 had a column entitled "CAUSATION notes". The appellant confirmed during the appeal hearing that the Tribunal should have found the mould infestation was caused by the condition of the rental premises and should have found the landlords in breach of s.52 and/or 63 because of the condition of the property which lead to the mould infestation.
6. The three structural defects that the appellant submitted caused the mould infestation were alleged to be (see page 6 of the appellant's appeal submissions and her oral submissions during the appeal hearing): 1. guttering and membrane design, 2. balcony drainage, 3. storage room and garage guttering.
7. As to the first structural defect - guttering and membrane design - the appellant submitted that the Tribunal did not attach sufficient weight to page 6 of the Mould report specifically these sections: "The internal air samples, when compared with an external air sample, are significantly higher for the number of spores present. There is also a shift in dominant mould genera. In the external sample cladosporium is dominant whereas in the internal sample it is aspergillis-penicillin. this is significant as it confirms there is a deviation from a normal fungal ecology internally. The increase in aspergillis-penicillium is quite stark with Bedroom 2 having 99 times the number of aspergillis-penicillium found outside. the lowest aspergillus penicillium count indoors was Bedroom 3, still with 35 times the external sample."
8. The Senior Member considered the Mould Report. He wrote the following in the Decision at page 5: "The difficulty the applicant faces is that Mr Williams does not state that the mould in the premises is caused by the condition of the premises. Mr. Williams undertook testing around the premises which established the presence of high levels of aspergillium-penicillium spores within the property which were not present outside the property it is clear that there was mould in the property, but that does not establish the cause."
9. The Senior Member spent all of pages 6 and 7 of the Decision considering the Mould Report.
10. The appellant submitted that the Senior Member did not attach sufficient weight to the following evidence which, she submitted, established that the balcony drainage caused the mould infestation (page 6 of appellant's submissions): "Design Defect Fault - 'involving balcony drainage that will lead to further decay of the property'. 'Rectification of a guttering issue over the garage that allows rainwater to stream down an external wall.' 'Rectification of mechanical ventilation that is currently not working'"
11. It is not known where those quotations appear in the Mould Report. It is possible the appellant paraphrased parts of page 21 of the report which is headed "Section 5: Moisture Assessment". The Appeal Panel's version of page 21 is highlighted with a dark colour which makes it appear the page has been heavily redacted. It does not appear the appellant was redacting the Mould Report rather she was attempting to highlight words therein, however it did make page 21 extremely difficult to read.
12. On page 21 of the Mould Report in Section 5 is written "Moisture Issue 2: Design and construction issues leading to penetrating dampness". There is a column entitled "Observations" and another entitled "Opinions & Recommendations": "Drainage spouts from two balconies at the South East of the building are causing penetrating dampness on the wall below. readings in the region of 450WME are recorded on the external wall/. [sic] A better drainage solution should be established by the landlord. Garage guttering is being bypassed. storm water is being channelled onto the external brick wall. Recommend: trimming to fit correctly."
13. The Senior Member considered this page of the Mould Report and wrote the following on page 6 of the Decision: "Mr Williams also stated, under the heading "Section 5 Moisture Assessment", "Moisture issue 1: Suspected rising damp", "Observations: Wall readings were elevated" and "Opinions & Recommendations: This should be reviewed by a waterproof proof membrane specialist". Under the heading "Moisture issue 2:Design and construction issues leading to penetrating dampness", Mr Williams observed "Drainage spouts from two balconies at the south east of the building are causing penetrating dampness on the wall below" in respect of which he expressed the opinions and recommendations: "Readings in the region of 450 WME recorded on the external wall/. A better drainage solution should be established by the landlord." and also observed "Garage guttering is being bypassed", in respect of which he noted the opinions and recommendations: "Storm water is being channelled onto the external brick wall. Recommend trimming to fit correctly."
14. Earlier on page 6 of the Decision the Senior Member observed "Mr Williams does not identify what WME stands for, but he does indicate that any WME below 179 was normal".
15. The table on page 6 of the appellant's submission in which the quotation set out at paragraph 60 is contained references page 6 of the Mould Report. Those quotations do not appear on page 6 of the Mould Report however what is written on page 6, which may be what the appellant is referring to in her table is this: "if you are passing this report to your landlord, a number of my observations in readings may be of value to that organisation as it identifies issues for their consideration and action. These include rectification of mechanical ventilation that is currently not working; Rectification of a guttering issue over the garage that allows rainwater to stream down an external wall and a design fault involving balcony drainage that will lead to further decay of the property."
16. The Senior Member set out that section of the report at the top of page 6 of the Decision after he wrote "Mr. Williams recorded the results of moisture testing of the walls in several rooms in the property. Old ratings were normal. Mr. Williams did record some issues and stated:" whereupon the Senior Member set out the quotation above.
17. The Senior Member considered the relevant parts of the Mould Report that the appellant drew his, and our, attention to, and made assessments of that evidence and findings based thereon. The Senior Member's decision was not against the weight of the evidence from page 6, or page 21, of the Mould Report.
18. That leaves the third alleged defect; the storage room and garage guttering. The finding that the mould infestation was not caused by a breach by the landlords was said to be against the weight of evidence on page 20 of the Mould Report. On page 20 there were eight photographs with annotations, again highlighted in a way that appeared to be redactions. Under one photograph is written "Attempt to waterproof/divert rainwater" and under another it is written "Garage - channelled onto wall" and yet another "Water draining directly from two opposite balconies onto wall causing 458WME at height".
19. The Senior Member did not expressly consider those annotations under the three photographs but he did consider the Mould Report in the following way (pages 6 - 7): "Mr. Williams noted that in the storeroom the wall ratings range from 290 WME to 610 WME for "base readings" that is at the floor level, and 256 to 322 WME at 1.5 metres. Mr. Williams also noted that there were relatively high floor readings in the storeroom considering the age of the property (at 3.6 to 3.8%) and that the slab should have been dried out more fully since it was newly laid. Mr. Williams inferred that "the concrete is more becoming more than from penetrating dampness from ground moisture [sic]". in relation to those findings, I know that the storeroom was at the back of the property separated from the living areas by an underfloor void. Mr. Williams noted an attempt to divert rainwater at the base of the walls at the side of the property which he described as "Largely unsuccessful considering moisture ratings example 284 WME (1.5m) 405 WME (base) readings improve moving upslope [sic]". Mr. Williams also noted that storm water was channelled onto the wall of the garage and water was draining directly from two balconies onto a wall, causing 458 WME at height. as far as I can tell Mister Williams does not identify what WME stands for, but he does indicate that any WME below 179 was normal. Mr. Williams also stated, under the heading, "Section 5 [this passage is set out in paragraph 62 of these reasons above]… Mr. Williams also noted, under the heading "Section 6: Issues to consider in your new home": "there is a risk of high atmospheric pressure and condensation in the home. High moisture levels and condensation leads to mould amongst other issues such as increased pest activity and dust mites", end expressed the opinion that "There our number of places in a home internally where the excess moisture can be produced" which he identified as including cooking, showering, clothes drying and "normal respiration of adults during the day and night". in the absence of evidence of elevated moisture levels on any internal wall of the property, I am unable to be satisfied that the mould within the property was caused by the condition of the property or that the landlord was in breach of their obligations pursuant to ss 52 and/or 63 of the RTA. I note that Mr Williams identified that an exhaust fan in the en suite bathroom was not functioning, but there is no evidence of how long that had been the case and Mr. Williams did not express the opinion that that was a cause of mould in the property. I also note that Mister Williams did identify high moisture readings on the floor of the storeroom. However, there was no evidence before the Tribunal to establish that any property kept in the storeroom had been damaged by mould. Accordingly, on the evidence before me I do not find that the applicant's case has sufficient merit to warrant an extension of time and the application will be dismissed."
20. We do not consider the Member's decision to be against the weight of the evidence, namely the Mould Report and specifically the annotations under the three photographs on page 20 of that report. The Member considered the Mould Report in detail, and in its totality, while assessing the merits of the appellant's claim, and concluded that the claim did not have sufficient merit to warrant an extension of time. We do not find the Member's conclusion as to the merits of the appellant's claim were against the weight of the evidence, namely the parts of the Mould Report the appellant drew to our attention.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2023