Xu v Naganath [2026] NSWCATAP 111;

1. This appeal was filed on 29 August 2025. The prescribed period under cl 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) for lodging an internal appeal in residential proceedings is within14 days from the date that the parties were notified of the decision or reasons for decision. In the present case, unless the Tribunal grants an extension, the appeal has been filed out of time.
2. Under s 41 of the NCAT Act, the Appeal Panel may extend the time for lodging the appeal. An extension may be sought and made even after the time has expired.
3. The relevant principles which generally inform the exercise of the discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include the length of the delay, the reasons for the delay, whether the appellant has a fairly arguable case, and the extent of any prejudice suffered by the respondent.
4. In the present case the Landlord sought an extension on the basis that she has limited ability to read English and had understood that the relevant time limit was 28 days. The delay was minimal (a few days). The Tenants do not claim prejudice as a result of the delay, and do not oppose the grant of an extension.
5. In the circumstances we are satisfied that an extension of time should be granted for the filing of the appeal, and order pursuant to s 41(1) of the NCAT Act that the time for the Landlord to lodge her appeal is extended to 29 August 2025.

1. Although the Landlord filed an application for a stay of the Decision, that application was dismissed by the Appeal Panel, differently constituted, on 12 September 2025. We understand that the Landlord has now made the payment required by the Tribunal's order to the Tenants.

1. The following facts are not in dispute between the parties.

(1) The Landlord and Tenants were parties to a residential tenancy agreement dated 8 July 2023. Management of the leased premises was conducted by a managing agent on behalf of the Landlord.

(2) Rent payable under the tenancy agreement was $1,100 per week. A bond of $4,400 was paid by the Tenants to the agent at the commencement of the lease and deposited with Rental Bond Services.

(3) In addition to the tenancy agreement, the Tenants entered into a separate furniture lease agreement (furniture agreement) dated 11 July 2023. The furniture agreement was with a company named Lotus One Pty Ltd. Rent payable under the furniture agreement was $200 per week. A bond of $800 was also payable, although only $785 was paid by the Tenants to the agent at the start of the lease. The furniture lease agreement included the following provision: "The bond of $800 will be returned after the final inspection if there is no damaged or missed to furniture and appliances." The furniture bond was not lodged with Rental Bond Services.

(4) On 1 July 2024 the Tenants gave notice that they were terminating the tenancy agreement on 15 July 2024. The Tenants paid rent up to and including 13 July 2024 and conceded that at the conclusion of the lease they owed a further 2 days rent ($314.29). The agent accepted the keys on 18 July 2024. The Landlord claims that rent was payable until 18 July 2024 when the keys were accepted from the Tenants.

(5) After the Tenants had moved out the agent notified the Tenants that deductions of $2,534.72 (representing unpaid rent $942.86, steam clean mattresses and sofa $530 + GST, loose toilet cover $120, repair damaged floor $605, and water usage $283.86) would be applied against the bond of $4,400. There was no mention of the furniture bond of $785.

(6) The agent made a claim on behalf of the Landlord on the whole of the rental bond of $4,400. Contrary to the requirement under the RT Act s 165, the agent did not provide documents on behalf of the Landlord to the Tenants proving the claims against the bond within 7 days of claiming the bond.

(7) The agent subsequently returned $1,716.31 to the Tenants by payments dated 8 September 2024 and 11 September 2024.

1. The Tenants state that they were unaware that a claim on the bond had been made on behalf of the Landlord, and so did not contest its release to the Landlord. There was no evidence before the Appeal Panel as to whether the Tenants received notice from the Rental Bond Services that a claim had been received from the Landlord for the release of the rental bond to the Landlord in full.
2. The amount received by the Tenants from the agent was treated by the Tenants (and the Tribunal at first instance) as representing repayment in full of the furniture bond ($785) and part payment of the rental bond ($931.31).
3. The Tenants conceded that they owed a further two days rent ($314.29) at the end of the lease. The Tenants thus calculated that they were owed a further $3,154.40 (that is $4,400 rental bond less $931.31 returned by the agent less $314.29 two days rent owed). The Tenants made an application to the Tribunal for orders under s 175 for the return of $3,154.40.
4. As noted, the Decision of the Tribunal was to order that the Landlord pay the Tenants the sum of $3,154.40 immediately.
5. The basis upon which the Tribunal made that order is apparent from paragraphs [16] and [20] - [25] of the reasons for the Decision:

"[16] As the Bond has been released to the landlord RT Act s175 (Powers of Tribunal) no longer operates, and the tenants' claim is determined as a breach of s165 with a remedy in a money order under s187(1)(c).

...

[20] Compliance with RT Act s165(1)(a), (1)(b) and (2) is mandatory. If the tenants have not consented to the claim: Kjoller v Tailford [2016] NSWCATAP 4; the landlord must comply with those requirements within 7 days. The landlord, by its managing agent has not done so. Compliance is important as indicated by the imposition of civil penalty of 20 penalty units. The landlord's failure to comply is an unlawful contravention of s163.

[21] RT Act s165 is an important protection for the tenant which is made clear by the imposition of a civil penalty for non-compliance: s165(4). This Tribunal does not however determine the civil penalty issue.

[22] The question then is whether or not the landlord's non-compliance requires the landlord to account to the tenant for the monies so claimed?

[23] This is not to suggest RT Act s165 acts as a bar to the landlord's claim for economic loss, only that the landlord cannot claim that economic loss using the Bond claim procedure, as any economic loss must be proved in the usual way as a breach of the contractual obligation to return the Premises in good order and condition, fair wear and tear excepted, which appears as a contractual term of the Agreement.

[24] To explain this another way, when a tenant leaves the Premises owing unpaid rent, utilities or in disrepair, the landlord suffers an economic loss. The purpose of the Bond is to provide security for any such economic loss, to enable it to be recovered from the Bond, rather than the more difficult and possibly vexatious process of obtaining a judgment which is then to be enforced, and which would often involve further difficulty, expense and vexation

[25] RT Act s165 appears to this Tribunal to impose a precondition for the convenience and utility of the landlord when making a claim on the Bond, that is, the landlord must comply with s165(1)(a), (1)(b) and (2). In other words, strict compliance by the landlord is the price paid by the landlord for the benefit of the Bond as security, and the straightforward process in this Tribunal to recover monies for disrepair, even when the landlord's claim is disputed by the tenants."

"[28] Having regard to these matters, in the opinion of this Tribunal, the landlord's non-compliance with s165(1)(b) and (2) requires an order that the monies so taken by the landlord from the Bond are to be repaid to the tenants, and the landlord can take such other action as advised.

[29] The consequence is after deduction of the amount conceded by the Tenants [$1,245.60], the Tenants are entitled to a money order for the balance of $3,154.40 to be paid by the Landlord to them."

1. The Tribunal further noted (at [26] - [27]) that:

"[26] ...non-compliance [with s165] only prevents recovery from the bond, and the Landlord has other rights against the Tenants arising from a proven breach of the agreement to claim the economic loss from the Tenants by bringing a claim under RT Act against the Tenants for breach of the agreement.

[27] An order for repayment of the moneys which the Landlord his unlawfully taken from the bond does not prevent the Landlord from filing an application for recovery of economic loss provided that claim was brought within time ... and none of these estoppels otherwise arise".

1. The figure referred to in [29] of the reasons for Decision as the 'amount conceded' is made up of the amounts of $931.31 (part repayment of the rental bond received by the Tenants) and $314.29 (additional two days rent that the Tenants concede they owed).
2. The Landlord challenges the Decision on the basis that she has not received the bonds, and that the repairs, unpaid rent and outstanding charges for which she makes claims should be paid by the Tenants.

1. The Landlord's Notice of Appeal was accompanied by attachments "A" to "O" being various receipts, account statements, text messages and a furniture and appliance agreement. There was some lack of clarity at the hearing before the Appeal Panel as to what documents the Landlord had sought to rely on at first instance. The Landlord did not submit a transcript of the hearing. However, in response to the question in the Notice of Appeal 'What evidence did you give at the hearing? What documents did you show the Tribunal?' the Landlord stated:

"I have already submitted the invoices for repairing the floor and the shower head as well as my bank statements showing income and expenses to NCAT and the tenants. The tenants have also confirmed that they received the documents I sent. I am now including all of these documents again as part of the supporting documents."

1. It would appear that attachments "A" to "O" are the documents that the Landlord sought to rely on at first instance. The hearing of the appeal proceeded on that basis.
2. The Tenants filed a Reply to the Appeal on 10 September 2025.
3. On 7 October 2025 the Landlord lodged a bundle of documents, including a short submission and a subset of the documents that comprised attachments "A" to "O", in support of the appeal.
4. On 7 November 2025 the Tenants lodged a bundle of documents, including submissions and an amended Reply to Appeal. In the Tenants' amended Reply to Appeal, the Tenants supported the order made by the Tribunal that the Landlord pay the sum of $3,154.40 to the Tenants (which amount has now been paid) on the basis that:

(1) The Landlord has not appealed the Tribunal's decision that non-compliance with s 165 of the RT Act acts as a bar to the Landlord being able to make a claim on the bond.

(2) In any case there is no real possibility that the Landlord would succeed on any of her respective claims on the bond, and as such there has been no miscarriage of justice and there would be utility in allowing the appeal.

1. The Tenants' bundle included a copy of the documents relied upon by the Tenants at first instance.

1. Pursuant to s 80 of the NCAT Act, an internal appeal against a decision of the Tribunal may be brought to the Appeal Panel as of right on a question of law and by 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. On the face of the Notice of Appeal, the Landlord simply seeks to challenge the Decision on the basis that her claims that the Tenants are required to compensate her for unpaid rent and other damages should be found in her favour. The Landlord further asserts as a factual matter that she did not receive the bonds.
2. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 at [30].
3. However, we note that the Landlord is self-represented, and that English is not her first language. In C_ominos v Di Rico_ [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner.

1. The Notice of Appeal sets out the following 6 grounds of appeal:

(1) Furniture Bond not received. The Landlord has not received the $800 furniture bond from either the Tenants or the agent. Accordingly, the Landlord cannot be held liable for any obligations arising from this separate furniture rental arrangement, which was solely between the Tenants and the managing agent.

(2) Rental Bond not received. The Landlord did not at any time receive the $4,400 rental bond from the agent. Therefore, the Landlord cannot be held responsible for deductions or disbursements made from that amount.

(3) Rent payable until 18 July. The managing agent notified the Landlord that the keys were returned on 18 July. Rent should therefore be payable by the Tenants up to and including that date.

(4) Damage to flooring. At the commencement of the tenancy the flooring was in good condition. At the end of the tenancy the flooring was found to be significantly scratched and damaged. The cost of repair should be borne by the Tenants.

(5) Missing showerhead and damaged toilet seat. At the commencement of the tenancy all bathroom fixtures, including the showerhead, were intact and in good working order. At the end of the tenancy the showerhead was missing, and the toilet seat was loose, requiring repair and replacement. These costs should be recoverable from the Tenants.

(6) Water usage charges. Water usage charges are a Tenant's responsibility under the tenancy. The Landlord had consistently forwarded water usage bills to the agent each quarter for collection from the Tenants. The Tribunal erred in not recognising the Tenants' liability for this expense.

1. In the Landlord's submissions to the Appeal Panel the Landlord made a further claim that following the Tenants vacating the premises a cockroach infestation was discovered within the property. The cost of pest control is also claimed.
2. The Landlord also seeks leave to appeal on the bases that the decision was not fair and equitable and that it was against the weight of evidence. The reasons put forward to support the grant of leave on those bases reflect the same matters which the Landlord puts forward to support her appeal. The Landlord seeks either to have the matter remitted for rehearing before a differently constituted Tribunal or to have the money order varied to reflect the Landlord's claims against the rental bond.

1. It would appear from the Notice of Appeal that the Landlord is essentially seeking to reargue her claims on the bond. The Landlord does not expressly challenge the decision of the Tribunal that, because the bond has been released to the Landlord, RT Act s 175 no longer operates (at [16]), or that non-compliance with the RT Act s 165 precludes the Landlord from making a claim on the bond (at [20] - [25]) with the result the Landlord must repay the monies taken by the Landlord from the bond to the Tenants as 'unlawfully claimed' (at [28] - [29]).
2. However, as a result of its decision that s 175 no longer operates, the Tribunal did not deal with the merits of the Landlord's claims against the Tenants. It is apparent that the Landlord does challenge the Tribunal's determination that, the Landlord not having provided documentation in support of her claim to the bond, the Landlord could not maintain her claims in answer to the Tenants' claim for repayment of the amount of the bond. This raises the question of law whether the Tribunal correctly construed ss 165 and 175 of the RT Act. The question whether the Tribunal correctly interpreted a statute raises a question of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]- [74]. Hence, the Appellant may appeal that aspect of the decision as of right.

Consideration and conclusions on the question of statutory construction

1. The principles of statutory construction are well settled and for the purposes of this appeal are conveniently set out in the decision of the Appeal Panel in Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 (Patrick) at [21].
2. The starting point for statutory construction is the text; with context and purpose to be considered at the first stage, to assist in fixing the text with its meaning: Patrick at [21(1)].
3. RT Act s175 provides as follows:

175 Powers of Tribunal

(1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond.

(2) The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary.

(3) An application for an order must be made within the period prescribed by the regulations.

1. It is apparent from the text of s175(2) 'The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary' (emphasis added) that the powers of the Tribunal under RT Act s175 continue to operate after a rental bond has been released. As such we disagree with the Tribunal's finding (at [16]) that 'As the Bond has been released to the landlord, RT Act s175 (Powers of Tribunal) no longer operates'.
2. This leaves the question whether strict compliance with RT Act s165(1)(a), (b) and (2) is a precondition imposed on a landlord by RT Act s165 when making a claim on the bond (Decision at [25]) such that non-compliance:

(1) necessarily requires an order that monies taken by a landlord from the bond are to be repaid to the tenant (Decision at [28]) and

(2) prevents recovery by a landlord from the bond and requires the landlord to bring separate proceedings in respect of any claims against the tenant (Decision at [26]).

165 Notice to tenants of claims against tenants

(1) A landlord, landlord's agent or a person on behalf of a landlord who makes a claim for payment of a rental bond without the consent of the tenant must give the tenant -

(a) a copy of a completed condition report about the residential premises at the end of the residential tenancy agreement, and

(b) copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed.

(2) The documents must be provided within 7 days of the claim being made.

(3) The documents must also be provided to the Secretary of the Department of Communities and Justice if the whole or part of the rental bond was paid by or on behalf of that Department.

(4) A person who, without reasonable excuse, contravenes this section is guilty of an offence.

Maximum penalty - 20 penalty units.

1. There is no express reference in s 165 to the provision of the documents identified in s 165(1)(a) and (b) within the time frame provided by s 165(2) being a pre-condition to a landlord making a claim on the bond.
2. In the reasons for Decision at [20] - [21] the Tribunal noted that compliance with RT Act s165(1)(a), (1)(b) and (2) is mandatory. If the tenants have not consented to the claim then the landlord must comply with those requirements within 7 days. The Tribunal further observed that compliance is an important protection for a tenant, which is made clear by the imposition of a civil penalty for non-compliance of 20 penalty units.
3. On that basis the Tribunal apparently concluded that RT Act s 165 imposes a precondition on the landlord of compliance with s 165(1)(a), (1)(b) and (2) when making a claim for unpaid rent or charges or for compensation in defence of a claim by the tenant for repayment of a bond which has been released to the landlord.
4. However, the imposition of a penalty can operate in and of itself as a means of ensuring compliance with s 165. The fact that s 165(4) imposes a penalty for non-compliance does not necessarily lead to the conclusion that compliance with s 165 is a pre-condition to a landlord making a claim on the bond in defence of a claim by the tenant for repayment of a bond which has been released to the landlord. As the High Court stated in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38] "Words should not be read into a statute lightly": (Patrick at [21(8)]).
5. Further, read in the context of the surrounding provisions and the whole of the RT Act: (Patrick at [21(8)], Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [37]) there is no textual indicator of such an intention in the other provisions of the Act. To the contrary, none of the other provisions in Division 3 of the RT Act 'Release of rental bonds' (including s 175) expressly or implicitly contemplate that compliance with s 165 is a necessary pre-condition to a landlord making a claim on the bond. Nor is the operation of those sections more sensibly understood if the assumption is made that compliance with s 165 is a necessary pre-condition to a landlord making a claim on the bond in those circumstances.
6. Section 163 Claims for rental bonds provides that:

(1) A claim may be made to the Secretary for the payment of a rental bond by -

(a) the tenant or an agent of the tenant, or

(b) the landlord or an agent of the landlord, or

(c) jointly by the landlord and the tenant or agents for them.

(2) A claim is to be made in the approved form.

(3) A claim must not be made before the termination of a residential tenancy agreement unless -

(a) it is made jointly by or on behalf of the landlord and all the tenants, or

(b) it is made by or on behalf of the landlord and directs that the rental bond be paid to all the tenants, or

(c) it is made by or on behalf of all the tenants and directs that the rental bond be paid to the landlord.

1. The only preconditions to the making of a claim for the payment of a rental bond in s 163 are that it is in the approved form and that it must await termination of the residential tenancy agreement except in certain limited circumstances (unrelated to compliance with s 165).
2. Section 164 Claim notice to be given to other party provides for the other party to be notified when a claim on the bond has been made. Under s164 the Secretary must give written notice of the claim to the other parties to the residential tenancy agreement, stating that the Secretary will pay the claim unless notified in writing by a party within 14 days that the claim is the subject of proceedings before the Tribunal or a court. Again, there is no reference to the landlord providing materials to the tenant as a prerequisite to the bond being paid out.
3. Section 166 Matters that may be subject of rental bond claim lists (without limitation) costs, charges and other amounts that a landlord is entitled to claim from the rental bond for the residential tenancy agreement. There is no indication in s 166 that a landlord's entitlement to claim these amounts is dependant on compliance with the requirements of s 165 to provide certain information to a tenant within 7 days of a claim being made on the bond.
4. Section 167 Payment where no dispute provides for payment of a claim for the rental bond to be made by the Secretary in certain circumstances, including where the Secretary has not been notified within the claim notice period that there is a dispute as to the payment of the bond. Again, s 167 does not depend on compliance with the requirements of s 165 having first occurred.
5. Section 168 Disputed rental bond claims provides for a mechanism whereby a party who disputes a claim made on the bond may notify the Secretary in writing within the claim notice period or before payment of the bond claim that the bond claim is the subject of proceedings before the Tribunal or a court, and the Secretary will not pay out the bond claim until the proceeding has been determined. A party may dispute the bond claim whether or not they have received the materials required to be provided under s 165. By disputing the claim, the party can prevent the bond being paid out until the dispute is determined.
6. Having regard to the text of s 165 and the context of the surrounding provisions of the RT Act, we find no statutory support for, and we disagree with, the Tribunal's findings that strict compliance with RT Act s 165(1)(a), (b) and (2) is a precondition imposed on a landlord by RT Act s 165 when making a claim on the bond such that non-compliance requires an order that monies taken by a landlord from the bond are to be repaid to the tenants, and that non-compliance prevents a landlord defending a claim to repayment of the bond by reliance upon claims for unpaid rent or charges or compensation for breach of the RT Act or the tenancy agreement. Nothing in the Appeal Panel decision in Kjoller v Tailford [2016] NSWCATAP 4, cited by the Tribunal in the Decision at [20], supports that construction of s 165 of the RT Act.
7. We recognise that the Tribunal stated that the Landlord was entitled to bring separate proceedings to recover compensation for the Tenants' breaches of the tenancy agreement (subject to such claims being brought within the applicable time limitation). However, in our view, there is no basis in the text of the RT Act to deny to a landlord, who has (whether through failure of communication or through inattention or inadvertence on the part of a tenant) received payment of the bond, the capacity to defend a claim by the tenant for repayment of the bond moneys on the basis that the tenant has breached the tenancy agreement by the non-payment of rent or other charges or through failure to return the premises in the same condition as at the commencement of the tenancy (fair wear and tear excepted).

Consequences of findings as to the operation of RTA ss 165 and 175

1. The Tribunal's order that the Landlord pay the Tenants the sum of $3,154.40 immediately, being the "Refund of money unlawfully claimed from the Bond $3,154.40." depended on the Tribunal's findings as to the operation of RT Act s 175 and meaning of RT Act s 165, which we have found to be in error.
2. The further consequence of the Tribunal's determination as to the meaning and operation of RT Act ss 165 and 175, which we have found to have been in error, was that the Tribunal did not consider the merits of the Landlord's defence to the Tenants' request for a return of the bond (less amounts conceded by the Tenants).
3. Therefore, a material issue that arose for determination was not addressed or resolved by the Tribunal at first instance.
4. Section 81 of the NCAT Act provides:

81 Determination of internal appeals

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

1. Section 81(2) permits the Appeal Panel, where it can fairly do so, to determine a question which the Tribunal at first instance has failed to consider: see for example Kaye v The Owners - Strata Plan No 4350 [2022] NSWCATAP 173 at [54] - not doubted on appeal Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386 at [23].
2. The Appeal Panel has the Landlord's evidence and submissions in respect of each element of her defence before us. As such we are in a position to determine the Landlord's case in defence of the Tenants' claim to repayment of the bond. We consider that it is appropriate to do so in light of the object of the NCAT Act, set out in s 3(d), to "resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible".
3. The Landlord raised the following seven matters in her defence to the Tenants' claim to have the balance of the rental bond ($3,154.40) refunded to them.

(1) Furniture Bond not received. The Landlord has not received the $800 furniture bond from either the Tenants or the agent. Accordingly, the Landlord cannot be held liable for any obligations arising from this separate furniture rental arrangement, which was solely between the Tenants and the managing agent.

(2) Rental Bond not received. The Landlord did not at any time receive the $4,400 rental bond from the agent. Therefore, the Landlord cannot be held responsible for deductions or disbursements made from that amount.

(3) Rent payable until 18 July. The managing agent notified the landlord that the keys were returned on 18 July 2024. Rent should therefore be payable by the Tenants up to and including that date.

(4) Damage to flooring. At the commencement of the tenancy the flooring was in good condition. At the end of the tenancy the flooring was found to be significantly scratched and damaged. The cost of repair should be borne by the Tenants.

(5) Missing showerhead and damaged toilet seat. At the commencement of the tenancy all bathroom fixtures, including the showerhead, were intact and in good working order. At the end of the tenancy the showerhead was missing, and the toilet seat was loose, requiring repair and replacement. These costs should be recoverable from the Tenants.

(6) Water usage charges. Water usage charges are a Tenants' responsibility under the tenancy. The Landlord had consistently forwarded water usage bills to the agent each quarter for collection from the Tenants. The Tribunal erred in not recognising the Tenants' liability for this expense.

(7) Following the Tenants vacating the premises a cockroach infestation was discovered within the property. The cost of pest control is also claimed.

1. We will deal with each of these claims in turn. It is important to note that the rental bond is presumptively the Tenants' money and the onus lies upon the Landlord to establish her entitlement to payment by the Tenants: Tang v Zhao [2020] NSWCATAP 243 at [22]- [23].

1. The hirer under the furniture hire agreement was Lotus One Pty Ltd, a different legal entity to the Landlord. However, both the lease and the furniture hire agreement were managed by the Landlord's agent. The agent provided a Trust Account tenancy receipt in respect of both the rental bond and the furniture bond to the Tenants at the start of the lease (page 37 of Tenants' bundle).
2. It appears from the communication from the agent to the Tenants at the conclusion of the lease (page 54 of Tenants' bundle). that all deductions made following the termination of the lease were made against the rental bond. The Tribunal proceeded on this basis and treated the furniture bond as repaid. As such, the Tenants' claim did not concern the furniture bond.
3. In so far as the agent deducted amounts from the rental bond that it was not entitled to deduct because the amounts claimed did not relate to the leased property but rather to the furniture lease (for example 2 x mattress and 1 x sofa steam clean fee $583 - page 54 of Tenants' bundle), that is a matter for the Landlord to take up with the agent. The agent may be obliged to reimburse the Landlord for amounts that were withheld by the agent that properly related to the furniture lease agreement to which the Landlord was not a party. However this appeal is not concerned with any claim the Landlord may have against her agent.

1. The rental bond was paid to and receipted by the agent on behalf of the Landlord. As required by the RT Act and the terms of the tenancy agreement, the rental bond was lodged with Rental Bond Services.
2. The agent's claim on the bond was made on behalf of the Landlord. In so far as the agent has not accounted to the Landlord for the balance of the bond obtained from Rental Bond Services at the end of the lease, that is a matter for the Landlord to take up with the agent. As previously noted, this appeal is not concerned with any claim the Landlord may have against her agent.

1. The Landlord states that the Tenants made rental payments only up to 13 July 2024 but the managing agent did not obtain the keys until 18 July 2024. As such the Landlord claims an entitlement to a further 5 days rent.
2. The lease term was 15 January 2024 to 15 July 2024 (Respondents' bundle page 40). The Tenants have conceded that they owed rent to 15 July 2024.
3. As to the remaining 3 days rent claimed by the Landlord, the Tenants' evidence was that on 1 July 2024 the Tenants confirmed in writing to the agent that the last day of the lease was 15 July 2024 and that they would not be renewing the lease (Respondents' bundle page 44) and that they would hand over the keys on 15 July 2024 (Respondents' bundle page 49). That notice met the requirement of RT Act s 96 to provide at least 14 days' notice of termination of the lease agreement. The Tenants physically vacated the premises by 15 July 2024. The text messages to the agent confirm that on 15 July 2024 the Tenants had moved out and were waiting for the agent to attend to inspect and collect the keys (Respondents' bundle pages 44 - 47 and 49). Any delay in obtaining the keys appears to have been on the part of the agent.
4. In any case the Landlord bears the onus of proving her claim for an additional 3 days' rent. The evidence before the Tribunal did not establish that the Tenants remained in possession after 15 July 2024.

1. The Landlord claims that at the commencement of the tenancy the flooring was in good condition and that, at the end of the tenancy, the flooring was found to be significantly scratched and damaged. The Landlord claims that the cost of repair should be borne by the Tenants.
2. On giving vacant possession of residential premises, a tenant must leave the 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. (RT Act s 51(3)(b)). A landlord is entitled to claim from the rental bond for the residential tenancy agreement the reasonable cost of repairs to the residential premises as a result of damage (other than fair wear and tear) caused by the tenant (RT Act s 166(1)(a)).
3. However, the Landlord bears the onus of proving the claim - that is the condition of the premises when the agreement was entered into, the damage that has occurred, and the reasonable cost to repair.
4. In the present case no condition report was tendered. The Tenants' evidence was that they were not provided with a condition report at the commencement of the lease (statement of B Naganath, Respondents' bundle page 27).
5. Further the invoice for repair (Appellant's bundle page 16) is dated more than 3 ½ months after the end of the lease. The invoice simply states, 'item floor scratches repair $400'.
6. No other evidence of the damage which is claimed to have been caused by the Tenants during the term of the lease was submitted by the Landlord.
7. The Landlord's evidence is insufficient to establish that the Tenants damaged the flooring in the premises or that any damage to the flooring was more than fair wear and tear.

1. The Landlord claims that at the commencement of the tenancy all bathroom fixtures, including the showerhead, were intact and in good working order. The Landlord alleges that, at the end of the tenancy the showerhead was missing, and the toilet seat was loose, requiring repair and replacement. The Landlord seeks the costs of repair and replacement from the Tenants.
2. Again there is no condition report in the evidence which was before the Tribunal, or any other evidence to establish that the damage which the Landlord alleges was caused during the tenancy by the Tenants, or was anything other than due to fair wear and tear.
3. The Landlord's evidence is insufficient to establish that the Tenants were responsible for any loss or damage to the shower head and toilet seat.

1. A tenant must pay the water usage charges for the residential premises, but only if the premises are separately metered, and the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant and requests payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (RT Act s 39) A landlord may claim from the rental bond rent or other charges owing and payable under the residential tenancy agreement or the RT Act (RT Act s 166(1)(b)).
2. The Landlord claims that the Landlord had consistently forwarded water usage bills to the agent each quarter for collection from the Tenants, and that the Tenants have not paid water usage charges totalling $283.86.
3. The Tenants on the other hand assert that they never received copies of Sydney Water bills showing the charges. The Landlord's evidence does not establish that the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the Tenants, was sent to the Tenants or that they were requested to make payment within 3 months of the bill being received from the water authority.
4. The only evidence tendered to the Tribunal on behalf of the Landlord concerning requests by the Landlord's agent for payment from the Tenants in respect of water usage is:

(1) an email dated 1 July 2024 (Respondents' bundle page 44) which identifies 'outstanding invoices' in respect of water usage for the periods 29/7/23 - 30/10/23 and 31/12/23 - 30/1/24. No amounts owing are provided, nor are details of water usage included or a copy of the bills from Sydney Water. Further, the bills are each over 3 months old.

(2) an email dated 22 July 2024 (Respondent's bundle page 54) which lists amounts owing in respect of water usage charges for various periods commencing 15 July 2023 through to 18 July 2024. Other than the final two amounts ($69.42 for the period to 30/4/24 and $60.94 for the period to 18/7/24) the request for payment falls outside the 3 month period imposed by s 39. Further, the request does not include details of water usage or a copy of the bills from Sydney Water. The Tenant also asked for all receipts (text dated 25 July 2024) but there is no evidence that the agent provided any documents in response.

1. The Landlord's evidence is insufficient to establish that the Landlord was entitled to claim any amount in respect of water usage charges.

1. The Landlord claims that following the Tenants vacating the premises a cockroach infestation was discovered within the property. The cost of pest control is also claimed.
2. There is nothing specific in the lease requiring pest control treatment at the end of the lease. Nor is there evidence that there was a need for pest control after the end of the tenancy due to any action by the Tenants, for example a failure to leave the premises reasonably clean having regard to the condition of the premises at the start of the tenancy.
3. The Landlord's evidence is insufficient to establish any basis upon which the Tenants might be liable to reimburse the Landlord in respect of any pest control treatments undertaken following the termination of the lease.

1. While we are satisfied that The Tribunal erred in its findings as to the meaning and operation of RTA ss 165 and 175, for the foregoing reasons we conclude that the Landlord has failed to establish that the Tenants have any liability to the Landlord following the termination of the tenancy in respect of any of the claims pressed by the Landlord in defence of the Tenants' claim to repayment of the amount of the bond.
2. Accordingly, there was no error in the Tribunal's order that the Landlord repay the balance of the bond (after deduction of the sums conceded by the Tenants). For those reasons, leave to appeal is refused and the appeal is dismissed.

(1) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), the time for filing the Notice of Appeal is extended to 29 August 2025.

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.