Xenos v St George Community Housing Ltd

NCAT Appeal Panel|2022-02-16|Before: Blake AM

Background

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal on 6 September 2021 made under the Residential Tenancies Act 2010 (NSW) (RT Act).
The respondent is the landlord of premises which included an apartment of which the appellant was a tenant (the premises) pursuant to a written residential tenancy agreement dated 5 July 2019.
The appellant was required to move out of the premises temporarily on 8 July 2021 for 21 days when a ceiling collapsed due to a leak from another apartment. The appellant was re-housed in another apartment in the same building.
The appellant lodged a Tenancy Application in the Tribunal seeking orders in relation to outstanding repair works in relation to "roof flooding", incomplete plumbing and sewerage works and the respondent's alleged "refusal to reduce rent for [the] duration of previous [and] future repairs" and to carry out repairs "unless we hand over the keys".
The Tribunal made orders to: 1. allow the sum of $1,930 to be paid by the respondent to the appellant by 4 October 2021 in respect of the appellant's claim for $9,531 made under s 44(1)(b) of the RT Act for loss of facilities; 2. dismiss the appellant's claim for $15,000 made under s 187(1)(d) of the RT Act relating to compensation for a dispossessed tenant; 3. dismiss the appellant's claim for rent abatement for 21 days, totalling $1,059; 4. dismiss the appellant's claim for $900 for a replacement refrigerator.
The respondent stated that it has paid the appellant the money ordered to be paid by the Tribunal.

Notice of Appeal

The appellant lodged his Notice of Appeal on 5 October 2021. The appellant marked the box on the Notice of Appeal to indicate that leave to appeal was being sought.
The appellant challenged each of the orders made by the Tribunal. The grounds of appeal included claims that: 1. the compensation claimed by Ms Tania Burns (Ms Burns) was not considered by the Tribunal. Ms Burns was described by the appellant as a co-tenant; 2. the hearing was disrupted with the parties "in and out". This was a reference to the technological difficulties of which the appellant complained with interruptions to the Audio-Visual Link (AVL) and the telephone line disconnecting during the hearing; 3. no "written case law precedent" was relied upon by the Tribunal. The Notice of Appeal does not identify the case law to which the appellant is referring to or seek to explain its relevance. The cases are presumably the two decisions of the Appeal Panel cited in the appellant's written submissions that were attached to his Notice of Appeal.
In support of the application for leave to appeal, the appellant contended that: 1. the decision was not fair and equitable because: 1. the hearing was disrupted; 2. in relation to "a major flood of ceiling" there was no action taken by the respondent; 3. there was no consideration by the Tribunal of a building inspector's report in relation to movement of footings; 4. there was a "sewer problem" (presumably inferring that the Tribunal failed to consider this issue). 1. the decision was against the weight of evidence because: 1. the appellant referred to documents in the evidence bundles and cross referenced them to "precedent as to residential tenancy" and no weight was given to that in the Tribunal's decision; 2. the Tribunal failed to have regard to the documents in the evidence bundle (described as the "legal bundle") and had too much regard to "hearsay [sic], libel and slander"; 3. the respondent refused any mediation; 4. the Tribunal should have given more weight to the laundry sewer gas that was poisonous and not repaired by the respondent.
As stated in [8(3)] above, the Notice of Appeal attached a copy of a written submission by the appellant. These were provided to the Tribunal in response to the respondent's written submissions to the Tribunal provided "in April 2021".

Reply to Appeal

The respondent lodged a Reply to Appeal on 15 December 2021. The respondent opposed the appellant's application for leave to appeal. The Respondent supported the original orders made by the Tribunal and attached to the Reply to Appeal a copy of the respondent's written submissions dated 25 October 2021 prepared in opposition to the appellant's application for a stay of the Tribunal's orders.

Extension of time to lodge the Notice of Appeal

The Notice of Appeal was lodged outside of the 14 days prescribed under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules), having regard to par (d) of the definition of "residential proceedings" in r 3(1) of the NCAT Rules. On our calculation, the appeal was lodged 14 days late.
In its Reply to Appeal, the respondent objected to an extension of time being granted on the basis that the appellant "has provided no explanation at all as to why the application was not lodged in time".
At the hearing, the appellant's only reason for not commencing his appeal within time was because he was "under the impression it was 28 days". However, there was no explanation given by the appellant as to how he derived his "impression" as to when he was required to lodge his Notice of Appeal.
The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22].
In Jackson at [22], the Appeal Panel said in relation to an extension of time in which to bring an appeal: "[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: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (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) 71 NSWLR 61 at [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) 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]."
There is no evidence that the respondent will suffer prejudice if we extend time other than in the sense described in Jackson at [22(2)]. However, as to the criteria in Jackson at [22(3)], the delay in this case is more than minimal, there is no evidence in support of the explanation for the delay beyond the assertion made by the appellant to us at the hearing and for the reasons set out below, in our view, the appellant's prospects of success in the appeal are weak.
In these circumstances, we are satisfied that the appellant has not made out any basis to justify us dispensing with or relaxing the requirement that an applicant must lodge an appeal within the time prescribed by the NCAT Rules.
We dismiss the appellant's application to extend time to lodge the Notice of Appeal.
Given the matters referred to in Jackson at [22(4)], we briefly set out below our consideration of the appellant's prospects of success in the appeal by setting out statutory basis of the appeal and the applicable legal principles, and considering the alleged and possibly available grounds of appeal.

Statutory basis of the appeal and the applicable legal principles

Section 80(2) of the NCAT Act provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel.
An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred; or otherwise an error of the type that it is appropriate to grant leave to appeal.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exclusive list of questions of law including whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, and whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)].
A failure to deal with evidence may also in the appropriate circumstances that may be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40].
In the absence of any question of law raised by an appeal, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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. there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
In the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where "there was a significant possibility", or "a chance that was fairly open", that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in pars (a) or (b) of cl 12(1) not occurred or if the fresh evidence under par (c) of cl 12(1) had been before the Tribunal at first instance.
Further, even if an appellant from the decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in certain matters. Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken, or the Tribunal went about the fact finding process 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.
Where, the appellant is self-represented, it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].

Hearing of the appeal

At the hearing of the appeal, we raised with the appellant his failure to comply with the procedural directions made by the Appeal Panel on 3 November 2021, which included an order that the appellant was to lodge "the sound recording or transcript of the hearing at first instance and a typescript of the relevant parts, including the oral reasons" by 8 December 2021. The appellant only provided a copy of the orders made by the Tribunal on 6 September 2021 but not "the short oral reasons given for the decision" referred to in those orders.
We also raised with the appellant his references to the disruptions experienced with the communications during the hearing. The appellant stated that the transcript "suggests" there were "lots of drop-outs" and "babble" and "garble". He said that the process was "arduous" and that he was affected by COVID and a medical condition he described as a "cognitive impairment". The appellant submitted that his appeal raises issues of procedural fairness and natural justice and that it would be a "perversion" and "would not serve the interests of justice to not allow the appeal to proceed".
The respondent accepted both in its written and oral submissions that the hearing was interrupted but said these were only occasional and that the hearing was not affected because the Tribunal waited for any party disconnected to resume their communication link. The respondent submitted that the only impact was that the hearing time was lengthened which was to ensure that the parties were not prejudiced by those interruptions.
We further raised with the appellant our concern that in the absence of a copy of the transcript of the hearing we were not able to determine whether the interruptions of which he complained, deprived him of the opportunity of a fair hearing.
The respondent submitted that the appellant had not provided any evidence to establish that he may have suffered a substantial miscarriage of justice within the meaning of cl 12 of Sch 4 of the NCAT Act.
We made the following orders at the conclusion of the hearing: "1. The name of the respondent is amended to "St George Community Housing Ltd". 2. The Appellant is to provide to the Respondent and the Appeal Panel a typed version of the findings and reasons for decision made by the Tribunal on 6 September 2021 in respect of each of the Appellant's claims, and that identifies the location by the time stamp for those findings and reasons for decision, by 9 March 2022. 3. The Respondent is to notify the Appellant and the Appeal Panel whether it agrees with the Appellant's typed version of the reasons for decision and if it disagrees, to provide the Appellant and the Appeal Panel with a typed version of the findings and reasons for decision made by the Tribunal on 6 September 2021 in respect of each of the Appellant's claims, and that identifies the location by the time stamp for those findings and reasons for decision, by 23 March 2022. 4. Order, by consent, that a hearing of the appeal be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 5. The decision of the Appeal Panel in respect of the Appellant's application for an extension of time to appeal is reserved."
The appellant lodged submissions on 10 March 2022 which re-agitated matters raised by his Notice of Appeal but he did not, as directed by our order 2 in [35] above, provide a typed version of the findings and reasons for decision made by the Tribunal on 6 September 2021.
The respondent lodged its response on 24 March 2022 and did provide us with a copy of the transcript of the oral reasons delivered by the Tribunal and a summary document setting out the findings and reasons made by the Tribunal in respect of each of the appellant's claims together with the relevant time stamp.

Errors of law

Having regard to the principles in Cominos at [13], we have discerned the following possible errors of law: 1. there was a failure to provide proper reasons; 2. there was a failure to afford procedural fairness by reason of the intermittent AVL and telephone connection; 3. there was a failure to afford procedural fairness or a constructive failure to exercise jurisdiction by reason of the failure to consider the "sewer problem"; 4. the Tribunal failed to take into account relevant considerations by reason of the failure to consider the building inspector's report in relation to movement of footings; 5. there was a failure to afford procedural fairness or a constructive failure to exercise jurisdiction by reason of the failure to consider the claims of Ms Burns.
We have reviewed the Tribunal's reasons to assess their adequacy in the manner discussed by Bell P in NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, as later summarised in the decision of the Appeal Panel in Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23]: "[20] We must assess whether the reasons meet the minimum acceptable standard rather than the optimal level of detail: per Bell P in NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578 per Bell P at [66]. [21] The reasons need not be elaborate, the basis for the decision should be made apparent, and the features required for reasons (where requested) set out in s 62 (3) of the NCAT Act provide guidance as to the detail to be supplied in the present case: see at [71] and [74] per Bell P in Orr. [22] The features concerning written reasons set out in s 62 (3) of the NCAT Act are: (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. [23] We have also had regard to the matters that were set out in [77] of the judgement of Bell P in Orr, namely: These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
The Tribunal's reasons "were short oral reasons" delivered at the conclusion of the hearing on 6 September 2021. Although short, in our opinion they are adequate to explain the evidence relied upon and the Tribunal's process of reasoning in making its findings. Since they are short, it is convenient to set out the respondent's typed version of the Tribunal's reasons in full: "So, the order of the tribunal will be that the respondent is to pay the applicant the sum of $1930 on or before 4th of October 21. Briefly the tenant signed an agreement or background on the 5th of July 19 with the landlord. There was a water leak from unit 8 to unit 7 on the 18th of July the tenant. The tenant moved out as go to the due a collapsed ceiling. The tenant was moved /rehoused from the period 18th of July to the 28th of July when he returned and then from 10th August 25th of August. The tenant is claiming rent back for that period. I will do this sequentially the rent redebate is not allowed, because the tenant was given compatible accommodation in the premises given by the landlord, other than cooking facility and front yard and backyard for which an allowance has been made of $400 for the cooking facility and $400 for loss of facility of the yard for the three week. The tenant client rent reduction for the period 5 July 2019 to 18th July 2020, but that matter was delt (sic) with in the proceedings by the tribunal which were dismissed SH19/57633. The tenant appealed the decision of the tribunal, and which was finally concerned with the with the sewer smell through the laundry drain. The tenant appeal (sic) and the appeal was dismissed on the 16th of July 2020. These proceedings were commenced on the 10th of August 20 the tenant claimed rent reduction for the period 10 August 2020 till today's date of 50% and loss of facilities. No, (sic) The tenant claimed compensation pursuant to section 187 of $15,000 and loss of facility under section 44. I have allowed $400 for loss of facilities and $800 in total. The main argument by the tenant is that there was a sewer smell coming through the water through the drain floor waste drain in the laundry. The tenant provided evidence of a builder in exhibit A, which found a problem with the waste drain the landlord appointed a repairer who claims, that the drain which is. The repairs were carried out. The drain was of 50 millimetre diameter while there appropriate may be of 90 millimetre diameter. The landlords (sic) evidence is that the drain was fixed although the pipe the drain pipe might be 50 millimetre, it is sufficient and of practical use without having to jack hammer the tiles and the concrete to change it at great expense, when the drain is otherwise functional the landlord evidence is that there is no smell coming from the sewer, the tenant claims there is smell but on his own evidence or words from the bar table. It is for the tenant to make his claim with supporting evidence which has not been done. Hence the claim for compensation for the sum of $15,000 is dismissed. The tenant claims that due to mould and smell he has got health issues affecting his health under the civil liability act I have no jurisdiction to deal with that matter that item. The tenant claims that were cracks in the wall, while the landlord claims that they drop ceiling and cracks were all repaired by 24th of August 2020. Hence the claim under section 44 1 B (sic) is also dismissed for any loss of facilities. The tenant claims for the fridge $900 and that claim is made, the tenant says that the mould got into the fridge and the food was mouldy and the Land load admitted that but there is no evidence from the tenant by any expert or anyone else that the fridge is not functional and there is no quote or invoice for the fridge. The claim of rent rebate three weeks, is not allowed because the only alternative accommodation being given to the tenant by the landlord. Just returning to the Landlords evidence here by the way on the floor waste being repaired by 31st of December is contained in exhibit B page 1041. Have I left anything out. The bottom line is, and I will put this in the order, that the tenant is paid $1935.00 by 4 October 2021, and I will put each item why it is being paid."
Our review of the transcript of the Tribunal's oral reasons adequately explains: 1. why the appellant's claim for loss of facilities was reduced. There was a breakdown provided in the reasons of the amounts allowed by the Tribunal, totalling the sum of $1,930. There was also an explanation of each of those individual amounts that were agreed by the parties in all except two instances. Those two exceptions were the appellant's claim for loss of cooking facilities and a loss of use of the facilities of the yard and outdoor area for a period of 21 days when he was relocated to another apartment. The period of 21 days calculated by the Tribunal was not challenged by the appellant. The Tribunal allowed $400 for loss of cooking facilities (the respondent had offered $260) and $400 was allowed for the loss of the yard and outdoor area for that period. The appellant has not sought to demonstrate why that sum was unreasonable or outside the scope of the discretion afforded the Tribunal in determining that issue; 2. why the appellant's claim for $15,000 for compensation for dispossession was disallowed because the Tribunal allowed the claim for loss of facilities (in part) and the respondent had made provision for the appellant to have alternative compatible accommodation in the respondent's building. Further, the sewer smell had been the subject of other proceedings. After the tenant provided the report by the building inspector (referred to in the Notice of Appeal), the respondent effected repairs to the drain floor waste in the laundry and identified the evidence of those repairs having been undertaken; 3. why there is no reference in the reasons to movement of the footings that were said in the Notice of Appeal to be the subject of the building inspector's report. The report is not in evidence before us and the appellant has not explained its relevance to the Tribunal's findings. It may be the alleged movement of the footings is related to the cracks referred to in the reasons but if that is the case, then the Tribunal dealt with it by finding that the cracks in the wall were all repaired by 24 August 2020; 4. why the appellant's claim for rent abatement for 21 days was dismissed. This was said to be for the same reasons as the claim for dispossession, namely the appellant was given alternative compatible accommodation in the respondent's building; 5. why the appellant's claim for $900 for a replacement refrigerator was dismissed. The Tribunal made a finding that there was no evidence of the cause of the mould inside the refrigerator or the replacement cost of the refrigerator. There is nothing advanced by the appellant on the appeal to establish that this finding was wrong or unsupported.
We are satisfied that there is no fairly arguable case that the Tribunal failed to provide proper reasons.
We are satisfied that there is no fairly arguable case that the Tribunal failed to afford procedural fairness by reason of the interruptions to the AVL and telephone connection. In the absence of the appellant lodging the sound recording or transcript of the hearing at first instance as directed by the Appeal Panel on 3 November 2021, we are not in a position to determine whether the hearing was disrupted by interruptions to the AVL and telephone connection, as alleged by the appellant in the Notice of Appeal, to such an extent that the appellant was not afforded procedural fairness. The Appeal Panel has adopted this approach to alleged errors 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].
We are satisfied that there is no fairly arguable case that the Tribunal failed to afford procedural fairness or constructively failed to exercise jurisdiction by reason of the failure to consider the "sewer problem". As is clear from the Tribunal's reasons, the Tribunal did consider this issue and did not accept the appellant's evidence that there was a continuing smell.
We are satisfied that there is no fairly arguable case that the Tribunal failed to take into account relevant considerations by reason of the failure to consider the building inspector's report in relation to movement of footings. As is clear from the Tribunal's reasons, the Tribunal did consider the issue of the cracks in the wall to which the building inspector's report was presumably directed, but found that the cracks were all repaired.
We are satisfied that there is no fairly arguable case that the Tribunal failed to afford procedural fairness or constructively failed to exercise jurisdiction by reason of the failure to consider the claims of Ms Burns. We accept the respondent's submission that Ms Burns is not a co-tenant as defined by s 3(1) of the RT Act and that Ms Burns had been removed from the proceedings as an applicant by an order of the Tribunal made on 25 September 2020. There was no error made by the Tribunal in not dealing with any issues concerning Ms Burns after she ceased being a party to the proceedings.
Accordingly, we are satisfied that there is no fairly arguable case that the Tribunal made any error of law.

Leave to appeal

On the limited and incomplete material provided by the appellant in support of his appeal and without the sound recording or transcript of the hearing at first instance, we are unable to determine whether the decision under appeal was not fair and equitable and against the weight of evidence, as alleged by the appellant in the Notice of Appeal, such that leave to appeal should be granted. We are satisfied that there is no fairly arguable case that the appellant may have suffered a substantial miscarriage of justice on any of the bases in cl 12(1) of Sch 4 of the NCAT Act.
Accordingly, we are satisfied that there is no fairly arguable case that the Tribunal made any error in respect of which leave to appeal would be granted.

Order

We make the following order: 1. the application of the appellant to extend time to lodge the Notice of Appeal is dismissed.

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: 16 May 2022

(2019) 100 NSWLR 578

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