Urqueza v Zeng

1. This is an appeal against a decision of the Consumer and Commercial Division of the Tribunal dated 20 September 2024. The appellant was a tenant and the respondent the landlord under a residential tenancy agreement dated 20 March 2020. The tenants vacated the premises on 18 January 2024.
2. The parties filed applications against each other on 14 February 2025. The respondent sought payment of the bond and compensation pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (RTA). The appellant sought compensation pursuant to the same provision.
3. The respondent's application claimed $10,681 for "repairing, cleaning and mowing" and $291.40 in respect of water rates and sought payment of the whole bond of $3,000 towards that claim.
4. The appellant's application sought compensation for alleged breaches of ss 50, 52 and 63 of the RTA.
5. Both applications were heard by the Tribunal on 12 September 2024, and the Tribunal delivered its decision on 20 September 2024.
6. The Tribunal considered each of numerous claims for cleaning, repairs and garden maintenance made by the respondent and found in favour of the respondent in respect of:

damage to walls and tiled floor and the replacement of a light bulb

damage to the carpet and walls and markings on the wardrobe and walls, a damaged power point and damaged window lock and replacement of a missing blind

carpet replacement ($600 reduced by $400 to reflect depreciation and pre-existing damage)

wall painting and repair, window frame repair and repair to a wardrobe

repair of the blind ($200 reduced by 50% to allow for depreciation)

1. The Tribunal dismissed the respondent's claim in respect of garden maintenance.
2. In respect of the appellant's claim, the Tribunal found:

(1) That the respondent was in breach of cl 19.3 of the tenancy agreement (that is the obligation to keep the premises in a reasonable state of repair, considering the age of, the rent paid for and prospective life of the premises, which obligation is also imposed by s 63 of the RTA) in failing to repair the kitchen tap, and allowed compensation in the amount of five dollars per week for 12 months, a total of $260.

(2) That the respondent was in breach of the tenancy agreement in failing to repair a dishwasher, and allowed compensation in the amount of five dollars per week for the period the appellant did not have the use of the dishwasher, a total of $860.

(3) That the respondent was in breach of clause 19.3 of the tenancy agreement in failing to repair the air-conditioner, and allowed compensation in the amount of $10 per week for the entire time the appellant occupied the premises, a total of $1840.

(4) That the respondent was in breach of clause 19.3 of the tenancy agreement in failing to ensure that the roof was repaired so that the tenant did not suffer water penetration into the premises, and allowed compensation in the amount of five dollars per week from March 2020, when the leaking first occurred, to the date of vacating, a total of $920.

(5) That the appellant should be compensated in the amount of $1000 for non-economic loss arising by reason of the presence of mould caused by the leaking roof.

1. The total amount awarded to the appellant was $4480. Setting off the amounts awarded to the appellant against the amount awarded to the respondent, the Tribunal ordered the Rental Bond Board to pay the respondent the sum of $962.44 from the rental bond and ordered the balance of the bond to be paid to the appellant.

1. An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party to proceedings in the Tribunal may appeal against a final decision as of right on a question of law and with the leave of the Appeal Panel on other grounds. Pursuant to cl 12 of Sch 4 to the NCAT Act, leave to appeal against a decision of the Consumer and Commercial Division may be granted:

"... 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)."

1. The appellant did not in her Notice of Appeal raise any question of law or claimed question of law. The appellant sought leave to appeal on the bases that the decision was not fair and equitable and against the weight of evidence.
2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

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

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

"(a) issues of principle;

(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;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. The bases upon which the appellant asserted that the decision of the Tribunal under appeal was not fair and equitable and was against the weight of evidence were:

(1) The Tribunal relied upon an invoice dated 29 January 2024 from Haifen Yei of "Creative Renovation" included in documents relied upon by the respondent in determining the rectification cost of various items which it found the appellant had damaged. The appellant referred to a "quote" dated 25 January 2024 included in documents tendered by the applicant and maintained that she had submitted evidence to the Tribunal of the "invalidity and illegitimacy" of the quotation and that the Tribunal had not addressed that submission. We note that the "invoice" and the "quote" differ only in the inclusion in the invoice of an amount of $350 for a shower head in the bathroom. The Tribunal did not award the respondent any compensation in respect of the shower head and neither party suggested that any difference between the two documents was relevant to the appeal.

(2) The appellant included in her evidence provided to the Tribunal photographs which she asserted she had obtained from the respondent's previous property managers (Norwest Property). The appellant asserted that the photographs were taken at the time the appellant commenced occupation of the premises in 2020. The appellant asserted that those photographs showed that a number of items claimed by the respondent were already damaged at the commencement of the tenancy. Without pre-determining any question regarding the source or authenticity of the photographs, we will refer to them in this decision as "the Norwest photographs".

(3) The appellant submitted that the property was built in 1950 and that the Tribunal had failed to take into account the extent to which the items claimed by the respondent had "exceeded the useful lifespan". The appellant submitted that the respondent had failed to identify or provide evidence of the age of each item. The appellant relied upon the Australian Taxation Office depreciation tables as establishing that the relevant items had passed their useful lifespan.

(4) The appellant submitted that the amount of compensation awarded by the Tribunal on the appellant's claim was inadequate.

1. The appellant included in a folder of documents filed in relation to the appeal a bundle identified as "Evidence not previously provided". The appellant acknowledged that this material had not been before the Tribunal at first instance. The appellant did not suggest that it was significant new evidence not reasonably available at the time of the hearing. It consisted of a chronology of communications between the appellant and Fair Trading NSW and copies of some of the communications. This material is clearly not relevant to the issues arising in the appeal and we have had no regard to it.
2. The disorganised manner in which both parties presented material to the Appeal Panel rendered it impractical in the course of the hearing to deal with each of the items of damage to the property challenged by the appellant. The Appeal Panel asked the appellant to identify for the benefit of the Appeal Panel the relevant pages of the various bundles of documents filed by the appellant on which, respectively, there were reproduced:

(a) Photographs said to have been produced by Norwest Property which were relied upon by the appellant as evidence that damage in respect of which the respondent sought compensation existed prior to the commencement of the tenancy, and

(b) The comparable photographs contained in the outgoing condition report relied upon by the respondent.

1. The time which it took the appellant to identify the photographs relevant to the first items which the appellant challenged was such that it was clear that, if all items were to be addressed one at a time in the course of the hearing, it could not be concluded within the available time.
2. Accordingly, at the conclusion of the hearing, the Appeal Panel made directions:

"2. The appellant is to file and serve by 26 February 2025 a schedule identifying all items of damage in respect of which the appellant submits the photographs provided by Norwest Property provide evidence contrary to the incoming condition report.

3 If the Respondent wishes to make any submission about the schedule he is to file and serve such submission by 12 March 2025."

1. The appellant filed a document on 19 February 2025 which included submissions going substantially beyond the leave granted at the hearing of the appeal. As far as we can tell, however, the submissions repeated material in the appellant's written submissions in support of her appeal. While the appellant's document was not as clearly set out as the Appeal Panel was entitled to expect, the document did, however, identify photographs said to have been provided by Norwest Property relevant to six items of damage asserted by the respondent and the comparable photographs relied upon by the respondent as reflecting the condition of the property upon the appellant's departure. The document additionally referred to one item in respect of which the appellant did not rely upon the Norwest photographs. We will address that item along with the other six, notwithstanding that it is not strictly within the grant of leave.
2. The respondent filed a document on 4 March 2025 responding to the appellant's further document. To the extent that that document goes beyond matters raised by the appellant in her further document, we have had no regard to it.

1. The respondent's claim for compensation in respect of the condition of the premises following the termination of the tenancy was founded upon the alleged breach by the appellant of s 51 of the RTA. That section relevantly provides:

51 Use of premises by tenant

(1) A tenant must not do any of the following -

...

(d) intentionally or negligently cause or permit any damage to the residential premises,

...

(3) On giving vacant possession of the residential premises, the tenant must do the following -

(a) remove all the tenant's goods from the residential premises,

(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.

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

1. It is convenient to address in turn each of the grounds upon which the appellant submits leave to appeal should be granted.

Alleged reliance upon an "invalid and illegitimate" quotation

1. As we understand the Tribunal's reasons for decision, the Tribunal relied upon the invoice from Creative Renovation in respect of the following items:

(1) Living room:

(a) Bulb replacement, $40

(b) Repainting timber frame, $100

(c) Repairing stone flooring, $130

(d) Repairing and repainting three walls at $150 each, $450

(2) Master bedroom:

(a) Painting two walls at $200 each, $400

(b) Repairing the wardrobe, $200

(c) Fixing the window lock, $100

(d) Replacing a power point, $100

(e) Replacing a missing blind, $200

(3) Bedroom two

(a) Repair door, $300

(b) Replace blind, $200

(4) Bedroom three

(a) Painting two walls at $200 each, $400

(5) Bedroom five

(a) Repairing and repainting three walls at $150 each, $450

(b) Repair and repainting window frame, $260

(c) Repairing the wardrobe, $300

(6) Bedroom six

(a) Repairing and repainting three walls at $150 each, $450

(7) Kitchen:

(a) Repair and repainting two walls at $150 each, $300

(b) Repairing and repainting three stones (ie tiles in the stone flooring) at $120 each, $360

1. In each case the Tribunal found that the amounts set out in the Creative Renovation invoice were reasonable.
2. The appellant referred to searches of the ABN and the builder's licence number recorded on the Creative Renovation documents, which she submitted disclosed that neither the ABN nor the licence number belonged to Haifen Yei or Creative Renovation.
3. The respondent's submission in respect of the Creative Renovation invoice/quotation was that the amounts quoted were "very cheap" and that, if the appellant considered it unreasonable, she was able to obtain her own quotations.
4. The respondent also referred to a Bank payment summary document which recorded that the respondent had made a payment to "Haifen Yei Creative Renovation" of $10,681 on 29 January 2024. The document described the payment as being in respect of "repair bill" for the premises (identified by the address). The appellant questioned whether that document had been before the Tribunal but did not suggest that she could say definitively one way or the other.
5. Neither party provided the recording or any transcript of the hearing at first instance, which might have assisted in assessing whether the document had been provided to the Tribunal.
6. The appellant stated in the attachment to her Notice of Appeal:

"We do not believe we require the transcript from a hearing on the 12 September 2024."

1. In the course of the hearing of the appeal, the parties agreed that the Appeal Panel should proceed on the basis that there was no oral evidence and no oral submissions of significance made at the hearing.
2. Accordingly, there is not before the Appeal Panel any way to determine whether or not the document was before the Tribunal. In any event, the appellant accepted in the course of her submissions in reply that the respondent had made payment to Haifen Yei. The appellant's objection to the Tribunal's reliance upon the Creative Renovation quotation/invoice was, not that it had not been produced by Haifen Yei who carried on business as Creative Renovation, but rather that it was not produced by a legitimate and licensed business.
3. In respect of many items included in the quotation, the Tribunal, by reference to evidence provided by the appellant or otherwise, discounted the amount claimed by the respondent. None of the items in respect of which the Tribunal accepted that the Creative Renovation quote was reasonable involved a substantial amount of money. The amounts allowed for painting did not exceed $200 for an individual wall. The Tribunal accepted the amounts of $260 to repair and repaint the window frame and $300 for damage to the wardrobe in bedroom 5. No other item in respect of which the Tribunal accepted that the Creative Renovation quote was reasonable exceeded $200.
4. We are not persuaded that the appellant may have suffered a substantial miscarriage of justice through the Tribunal accepting as reasonable the amounts from the Creative Renovation quote/invoice which we have listed above. The Tribunal was entitled to accept the document as evidence of the reasonable cost of repairs. The fact, if it be the case, that Haifen Yei was not a licensed builder did not have the consequence that the amounts charged were not reasonable or that the respondent was not entitled to compensation from the appellant for the amounts he had spent in rectifying damage to the property caused by the appellant which was more than fair wear and tear.
5. Moreover, in the absence of contradictory evidence from the appellant, the Tribunal was entitled to accept that the amounts listed in the Creative Renovation quote/invoice reflected the reasonable cost of rectification of the items referred to. In coming to that conclusion, the Tribunal could have regard to its own sense of what might be reasonable in assessing the reasonable cost for the rectification of each item.

Failure to take into account the age of the premises

1. It is convenient to deal secondly with the third basis upon which the appellant submitted that the decision was not fair and equitable and against the weight of evidence, that is the alleged failure of the Tribunal to take account of the age of the premises or the items in respect of which the respondent sought compensation for damage or repair costs.
2. The Tribunal did in a number of instances take into account the age of relevant items. The respondent's claim in respect of the carpet in the second bedroom was discounted by two thirds and the claim in respect of the blind in bedroom six was discounted by 50%, as was the claim for cupboard repair in the kitchen.
3. Putting to one side any evidence provided by the Norwest photographs, the Tribunal was entitled to conclude that the condition at the commencement of the tenancy of the paint on the walls, carpet on the floors and woodwork around windows and doors and in cupboards was as recorded in the incoming condition report. The stone tiles on the floor in the kitchen and living room do not appear to be of a character which would be expected to be damaged by fair wear and tear even over a substantial period of time.
4. The onus lay upon the respondent, as landlord, to establish that damage in respect of which he sought compensation was more than fair wear and tear. However, in considering that question, again, the Tribunal was entitled to use its own judgment. There was no onus on the respondent to establish the age of any item damaged by the appellant in respect of which he sought compensation. The question for the Tribunal was whether the damage had occurred during the tenancy and whether it was more than fair wear and tear.
5. We are not persuaded that the appellant may have suffered a substantial miscarriage of justice by reason of any failure of the Tribunal to apply any measure of depreciation to any item of repair other than those in respect of which it explicitly did so.

1. The appellant submitted that the decision was not fair and equitable or was against the weight of evidence because the Norwest photographs demonstrate that damage was present at the commencement of the appellant's tenancy or otherwise contradict the respondent's claims.
2. As noted above, pursuant to leave granted by the Appeal Panel at the hearing of the appeal, the appellant provided a document which listed seven items. In respect of six of those items the appellant submitted that the Norwest photographs disclosed that findings of the Tribunal in respect of those items were incorrect.
3. Before dealing with the individual items in respect of which the appellant submits the Norwest photographs establish that the decision of the Tribunal is against the weight of evidence or not fair and equitable, we note that the provenance of the Norwest photographs was not established by any direct evidence.
4. The appellant included in her documents a chain of emails between herself and a Senior Property Manager at Norwest Property in which the appellant asked for "the images taken during the initial conditional report" and the property manager suggested that the appellant attend their offices to download them to a USB drive. The emails indicate that an appointment was made and photographs were provided. The appellant did not provide any statement of evidence to confirm that the photographs included in the appellant's bundle of documents were those provided by Norwest Property. No metadata or other record of the date when the photographs were taken has been provided. Nor is there any confirmation from Norwest Property of when the photographs were taken.
5. In these circumstances it cannot be said that the Tribunal was bound to accept the Norwest photographs as evidence of the condition of the property at the commencement of the tenancy.
6. We will deal in turn with each item referred to in the appellant's supplementary document.

1. This issue relates to the item referred to at [25(2)(a)] above. The appellant pointed to 2 photographs included in the respondent's evidence which the respondent relied upon as showing damage to the painted walls in the master bedroom. The appellant submitted that those photographs showed the walls to be light blue in colour. The appellant maintained, by reference to one of the Norwest photographs, that the walls in the master bedroom were "light yellow/cream in colour, not light blue".
2. As Beazley P, with whom Meagher and Leeming JJA agreed, stated in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [93]

"[93] A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance."

1. Photographs may also be deceptive in relation to colour. The colour reproduced in a photograph depends critically on the lighting conditions in which the photograph was taken.
2. We are not persuaded that the photographs relied upon by the respondent to establish that the walls in the master bedroom were damaged and required repainting should necessarily be interpreted as showing paint that was blue. Nor are we persuaded that it is possible, by comparison between those photographs and the photograph said to have been produced by Norwest Property on which the appellant relies, to conclude that the photographs were taken in different rooms.

1. This issue relates to the item referred to at [25(2)(b)] above.
2. The photographs relied upon by the respondent included four photographs of the wardrobe in the master bedroom, said to show a shelf, shelf supports and a hanging rod missing, and damaged paintwork.
3. The appellant asserts that the missing shelf is in fact visible in the photographs. The appellant also refers to a screenshot from an internet search that purports to show the cost of a hanging rod is $10.
4. The appellant argues that the paint damage is "marking caused by hangers" and is fair wear and tear.
5. The appellant also relies upon one of the Norwest photographs which she submits shows that, at the commencement of the tenancy, the shelf supports were already missing, the shelf was already missing, and there were already marks caused by hangers.
6. That photograph is of the left-hand side of the wardrobe. The respondent submitted that the photographs in his evidence, supporting his claim in respect of the wardrobe, were of the right-hand side.
7. We are not persuaded that the photographs necessarily show what the appellant asserts.
8. The question whether the marking of the paint was fair wear and tear is a matter of judgment in respect of which it would not be appropriate for the Appeal Panel to substitute its view for that of the Tribunal.
9. There is no indication in the Creative Renovation quote/invoice of whether the $200 quoted for the repair of the wardrobe (which the Tribunal accepted) included more than $10 for the missing hanger rod.
10. We are not persuaded that the Tribunal's conclusion regarding the wardrobe in the master bedroom was against the weight of evidence or not fair and equitable.

1. This issue relates to the item referred to at [25(3)(b)] above. The Tribunal accepted (at [42]) that the photographs relied upon by the respondent showed damage to the window blind in bedroom two.
2. The appellant relied upon two of the Norwest photographs which she asserted showed there was no blind in bedroom two at the commencement of the tenancy. The appellant submitted that the photographs showed only curtains and no blinds. The appellant submits that she should not be liable for the replacement of a blind in that room.
3. The incoming condition report records, in respect of bedroom two, an entry next to the item "blinds/curtains" which, while not entirely legible, includes the words "1 x roller blind - 2 x [?] blue curtains".
4. The Norwest photographs show the window with one set of curtains drawn (ie covering the window). It is impossible to state definitively by reference to those photographs that there is not a blind installed behind the curtains.
5. We are not persuaded that the Tribunal's finding that the appellant was liable for the cost of replacement of a blind in bedroom two was against the weight of evidence or not fair and equitable.

1. This issue relates to the item referred to at [25(5)(b)] above. In claiming for the repair of the window frame, the respondent relied upon a photograph which showed a chip in a window frame, said to be in bedroom five.
2. The appellant referred to one of the Norwest photographs which clearly shows an identical (or at least indistinguishable) chip in a window frame, also identified as bedroom five.
3. The respondent pointed to the entry in the incoming condition report, signed by the appellant and apparently by the agent from Norwest Property on 24 March 2020, which did not record any damage to the window frame.
4. Section 30 (1) of the RTA provides:

30 Condition report evidence of condition of premises

(1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report.

1. To the extent that the Norwest photograph is evidence that the condition of the property was not accurately recorded in the incoming condition report then s 30(1) has no application in this case, as there is evidence to the contrary. That would not have the consequence that the incoming condition report is not evidence of the condition of the premises at the commencement of the tenancy, merely that it would not be presumed to be correct.
2. The chip depicted in the photo in the Norwest photograph is substantial and obvious. It is difficult to understand how it could not have been noted in the incoming condition report if it was present at that time. The presence of the chip in the window frame in the Norwest photograph may cast doubt upon the proposition that the Norwest photographs were taken at or before the commencement of the tenancy.
3. As noted above, there was before the Tribunal no direct evidence that the Norwest photographs had been produced by Norwest Property or when the photographs had been taken. In the absence of such evidence the Tribunal was entitled to regard the incoming condition report as accurate and sufficient evidence that the window frame was not damaged at the commencement of the tenancy.
4. For those reasons we are not persuaded that the Tribunal's decision that the appellant was responsible for the damage to the window frame was not fair and equitable or was against the weight of evidence.

1. This issue relates to the item referred to at [25(5)(c)] above. The respondent's evidence of damage to the wardrobe appeared to be two photographs, one of which shows that a hanging rod was missing, and the other of which appears to show a collapsed shelf.
2. The appellant acknowledged liability for the missing hanging rod, but submitted it would have cost only $10 to replace it. She submitted that there was no damage visible in the other picture. The appellant referred to three of the Norwest photographs which show various aspects of the wardrobe and no damage to the wardrobe. The appellant submitted that those photographs establish that:

"[W]e would not have utilised the space to store any of our goods. The space is too low and too short that nothing would fit in there. The fact that the image (that was taken by the landlord) is dirty is further proof that we never utilised this low shelf and have never lifted it up during our tenancy."

1. We do not understand the logic of that submission. The appellant did not put before the Tribunal evidence that she had not used the wardrobe in bedroom five. Nothing in the Norwest photographs relied upon by the appellant discloses any reason why the wardrobe could not have been used. The appellant's argument appears to relate to idiosyncratic features of her own preferences and has no weight in the absence of specific supporting evidence. We do not accept that the appellant has established that the finding of the Tribunal regarding the damage to the wardrobe in bedroom five was against the weight of evidence or not fair and equitable.

1. This issue relates to the item referred to at [25(1)(b)] above. The appellant referred to photographs from the respondent's evidence which she submitted clearly showed that marking on the timber cupboard doors in the living room was Blu Tack, which she submitted could easily have been removed. The appellant did not refer to any of the Norwest photographs in relation to this item.
2. The respondent submitted in response that his claim for "repainting timber frame" in the living room related to marks which the appellant had left on the door frame. Those marks are clearly visible in a photograph (number 5) in the respondent's evidence.
3. We see no basis to find that the Tribunal's finding in respect of the repainting of the timber frame in the living room was against the weight of evidence or not fair and equitable.

1. This issue relates to the item referred to at [25(1)(d)] above. The appellant's submissions in respect of this item, which involved the award of $450 for the repainting of three walls in the living room, were limited to seeking to establish that the walls had not been painted since 2011 and that therefore the landlord was not entitled to the cost of repainting because the painting had exceeded its useful life. The appellant relied upon photographs, which she had located (apparently from the internet) and which she claimed showed the property in 2011. The appellant maintained that the photographs showed that the property was the same colour and must therefore not have been painted since then.
2. The appellant referred to the Tribunal's decision in INT Property Group Pty Ltd v Kaur [2022] NSWCATCD 142 at [59] where the Tribunal stated:

"As I have explained above, the landlord is entitled to be compensated the cost of repairs and the residual value of the existing paintwork, or to put it another way, for the loss of future use of the existing paintwork it has suffered: O'Brien v Twynam [2016] NSWCATAP 125 at [80 to 85]. In this respect, I will allow that interior paintwork in rented properties has an expected life of seven years. As the existing paintwork was approximately six years old, the landlord's loss is the use of the paintwork for approximately one further year."

1. The appellant also referred to Culmone v Churchill; Churchill v Culmone [2023] NSWCATCD 90. In that case the Tribunal rejected the landlord's evidence that the property had been freshly painted at the commencement of a tenancy, noting that the tenants had recorded on the incoming condition report that there were chips and marks on the doorways and the property had been poorly painted. We do not understand the relevance of that decision to this case.
2. The respondent maintained in response that the interior of the property had been painted in March 2020.
3. We do not find the material relied upon by the appellant persuasive, certainly not to the point where we could conclude that the Tribunal's decision regarding the painting of the living room was not fair and equitable or against the weight of evidence. We have referred above to the limitations of photographic evidence, in particular in relation to the comparison of colour.
4. We accept that a landlord is not entitled to recover costs of repair or rectification without regard to the extent to which that repair or rectification will leave a landlord in a better position than they would have been if the tenant had not caused damage beyond fair wear and tear. As the Appeal Panel stated in O'Brien v Twyman [2016] NSWCATAP 125 at [80]:

"... [A]n award for damages for a proven breach of contract is compensatory and designed to put the injured party, as far as money can do it, into the position he/she would have been had the contract been performed. That is, the injured party is not entitled to recover the costs of repairs that would place the party into a better position than they were in if there had been no breach (i.e. the injured party is not entitled to recover the costs of any betterment).

1. However, the evidence to which the appellant refers in support of her submissions in respect of this item is not sufficient to enable us to conclude that the amount allowed by the Tribunal was such as to leave the respondent in a better position than if the appellant had not caused damage to the paintwork in the living room.
2. In this context we note that the comment in INT Property Group v Kaur that "interior paintwork in rented properties has an expected life of seven years" is not a statement of legal principle but a finding of fact which is not binding on subsequent Tribunals.

1. The appellant's submissions concerning her cross application referred to previous decisions of the Tribunal and submitted that the Tribunal in this instance had failed to provide sufficient explanation of why the amount awarded for breach of s 63 of the RTA (cl 19 of the tenancy agreement) was less than that awarded in those previous decisions.
2. The measure of damages for loss of amenity, loss of enjoyment, distress, disappointment and inconvenience arising from a breach of contract involving failure to repair tenanted premises and/or interference with the quiet enjoyment of premises is a matter of judgment not amenable to the application of precise standards. Previous decisions of the Tribunal may provide guidance in relation to the appropriate measure of compensation for particular forms of breach, but are always to be considered in the context of the specific factual situation of the particular case and cannot be regarded as binding precedent.
3. A Tribunal seeking to assess compensation in respect of a failure to repair tenanted premises or for breach of the obligation to give quiet enjoyment of tenanted premises must have regard to the evidence presented by the tenant regarding the circumstances of the breaches and the particular consequences for the tenant of the breaches, but ultimately must do the best it can to assess compensation by reference to those facts and circumstances.
4. We are satisfied that the Tribunal's reasons for the amount allowed in respect of each element of the compensation awarded to the appellant are sufficient.
5. We are not persuaded that the measures of compensation awarded by the Tribunal in respect of the respondent's various breaches of the tenancy agreement (including s 63 of the RTA which is incorporated into every tenancy agreement) are against the weight of evidence or not fair and equitable.

1. For the foregoing reasons, leave to appeal will be refused and the appeal dismissed.

1. The respondent in his written submissions filed after the hearing sought an order for costs, which he identified as being $337.52 for printing.
2. Section 60 of the NCAT Act relevantly provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

1. Costs may only be awarded in proceedings in the Tribunal where there are special circumstances. We do not consider that there are special circumstances in this case. Although the appellant's documents were poorly organised, any disadvantage thereby caused (vide s 60(3)(a)) was to the Appeal Panel rather than the respondent. Although the appeal has been dismissed, we do not consider that it could be described as frivolous, vexatious, misconceived or lacking in substance (vide s 60(3)(e)).
2. We decline to make an order for costs. Each party should bear their own costs of the appeal.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) There is no order as to costs.

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.

02 September 2025 - Double up of last sentence certified by the Registrar