G K Burton SC, Senior MemberJ Sullivan, Senior Member
Catchwords
LAND LAW – RESIDENTIAL TENANCY – rent reduction and
compensation claims for alleged loss of facilities and services and
breaches of
landlord obligations – reasonable mitigation by tenants – measure of
Source
Original judgment source is linked above.
Catchwords
LAND LAW – RESIDENTIAL TENANCY – rent reduction andcompensation claims for alleged loss of facilities and services andbreaches oflandlord obligations – reasonable mitigation by tenants – measure ofloss – Residential Tenancies Act 2010 (NSW) ss 44, 47, 52, 63,70APPEAL – re-determination of proceedings
We have decided to grant leave to appeal in both appeals, allow the appeal, for reasons given below, and to re-determine the tenants' appeal rather than remit it. Re-determination was at the request of both parties. Our decision is for the reasons given below. We have noted, for completeness, that we had already extended time to appeal for both appeal.
On that re-determination we have varied the primary order, the operation of which was stayed pending determination of this appeal, by increasing it to the Tribunal's jurisdictional limit.
We noted in the appeal materials reference to an earlier decision in January 2025 and to the landlord's presence at the current hearing. We have not had access to that earlier decision, which appears to have been set aside on a second application under reg 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW). In any event, that decision has no relevance in respect of an appeal of the primary decision of 8 July 2025.
[20]
The applicants as tenants entered into a written residential tenancy agreement, in respect of premises in Killara, a North Shore suburb in Sydney, NSW. Rent of $3,000pw commenced on 3 November 2023. The tenants exited the premises on 10 November 2024. The house was a large home in a premier suburb in Sydney at a significant rental. It had six bathrooms, one laundry and one kitchen. It was noted on the tenancy agreement that eight occupants were permitted; the tenants had four young children in addition to themselves living in the premises.
The tenants had commenced the proceedings from which one of these appeals is brought on 23 September 2024. While in possession they claimed a rent reduction for reduction in facilities in the premises under s 44(3) of the Residential Tenancies Act 2010 (NSW) (RTA) or, alternatively, compensation for breach of habitability and repair obligations under RTA ss 52 and 63. Initially this included $7,000 for buying in January 2024 (with the landlord's permission) a new oven since the oven was not working when they moved in, but, since the tenants took the then-used oven with them, this was turned into a claim for loss on re-sale. Also claimed was a 10% rent reduction between March and October 2024 for severe hot water disruption to showers and baths and $849 (initially $700) to recoup the supply and installation of extra garage remotes and compatible receiver. The tenants capped their money claim at the jurisdictional limit of $15,000: Residential Tenancies Regulation 2019 (NSW) reg 40(b).
The landlord initially said that the oven was delayed in remediation by the time of year at which it was reported and was cured by the replacement. The landlord relied on its records of paying multiple plumber callouts which reported no issues and said that the hot water system was functional at all times with only minor fluctuations in temperature. The landlord contended that the remotes bought by the tenants were upgrades that did not pair with the existing system.
[21]
Both parties appealed.
The landlord's appeal (2025/0291216) was filed on 30 July 2025, 22 days out of time; the tenants appealed (2025/00298394) on 5 August 2025 also out of time. Each consented to an extension of time and we have granted such extensions. We also ordered that the appeals be heard together with evidence in one being evidence in the other.
On 13 August 2025 the primary order for $8,995 was stayed, with oral reasons, until further order of the Tribunal or finalisation of the appeal, whichever was the earlier in time.
In submissions on appeal the landlord said that the landlord no longer contested the amounts awarded for loss of use of the oven at $1,500 or the garage remotes at $350. The tenants continued to say in their appeal that the amounts were inadequate, in the case of the oven because it did not include the loss on re-sale.
At the conclusion of oral submissions, which raised alleged inadequacy of reasons, we asked the parties what they wished to occur in the event that the appeal was allowed. Neither wanted the proceedings remitted for further hearing in the Tribunal, having had an explanation from us that, if we re-determined the proceedings, the only appeal from that re-determination was limited - to the Supreme Court with its leave on a question of law. Both wanted re-determination to be on the existing documents provided to us, which we were told was all the primary material apart from the transcript of the primary hearing (which was not provided by either party) and the material on a USB that the tenants sought to introduce.
We urged the parties to endeavour to resolve the balance of the dispute but have not been advised that has occurred.
At the conclusion of the appeal hearing at about 4.35pm we made the following orders after drafting them, at about 5pm:
[22]
2.1 On or before 11 December 2025 and as soon as possible the tenants are to serve on the landlord's managing agent (agent) the content of the USB that is part of document A1 filed on 4 November 2025 by the tenants.
[23]
2.2 On or before 11 December 2025 the tenants are to file and serve by email any application to place into evidence on a re-hearing the content of the USB in 2.1 and reasons that should be allowed.
[24]
2.3 On or before 18 December 2025 the landlord by the agent is to file and serve by email any reasons that the tenants' application in 2.2 should not be allowed or any consent to that application.
[25]
(1) The parties have agreed that, if the appeal and cross-appeal are allowed, they wish the Appeal Panel to re-hear the proceedings on the material provided to the Appeal Panel for the appeals (noting that no transcript or sound recording of the primary hearing was placed before the Appeal Panel), together with the content of the USB in 2.1 if the tenant so applies and the application is granted.
[26]
(2) The landlord no longer disputes that the tenants are entitled to $350 in respect of the remotes and $1,500 in respect of the oven but the balance of those claims by the tenants together with the tenants' other claims remain in dispute.
[27]
4. With the consent of the parties, extend the times for filing each appeal to and including 30 July 2025 in 2025/00291216 and to and including 5 August 2025 in 2025/00298394.
[28]
5. Order that the documents in each appeal be additionally considered in the other appeal.
[29]
We have received the tenants' submissions concerning reliance on the USB and its service on the landlord; we have not received any submission from the landlord on that topic. We shall admit the additional material. The landlord has had the opportunity to examine it and there has been no indication of relevant prejudice.
[30]
Principles governing appeals from the Consumer and Commercial Division
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
[33]
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
[34]
Paragraph 12 of Schedule 4 to the NCAT Act states:
[35]
An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
[36]
(a) the decision of the Tribunal under appeal was not fair and equitable, or
[37]
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
[38]
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
[39]
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In summary, internal appeals may generally be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
In Unique Commercial Group Pty Ltd v Cusumano[2024] NSWCATAP 204 (Cusumano) at [25]-[40] esp at [30]-[32], the Appeal Panel revisited non-exclusive instances of errors on questions of law. At [33] the Appeal Panel that the categories of questions of law are "not closed" and at [37] stated:
[40]
37. What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2)[2023] NSWSC 416 at [33(4)], citing Thomas and Naaz[2023] NSWCA 40 at [52] and Da Costa v The Queen[1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.
[41]
In the course of analysis and by reference to extensive authority, the Appeal Panel in Cusumano referred to the following examples, among others, which constituted questions of law of potential relevance to this appeal: whether there was a failure to provide adequate reasons; whether there was a failure to take into account relevant considerations or a taking into account of irrelevant considerations that were integral in a proper exercise of jurisdiction.
Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr[2019] NSWCA 231, 100 NSWLR 578 at [65]- [77] esp at [77]. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL(1987) 10 NSWLR 247 (CA) at 259, 270-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme(2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NCAT Act s 62(3).
It is not settled whether there is a duty on the Tribunal to provide a written statement of reasons which meets the requirements of s 62(3) of the NCAT Act where - as here - there was no evidence of any written request under s 62 to provide such reasons: see GTK v NSW Treasury[2025] NSWCATAP 174 at [26]- ; at - ; at - . As acknowledged in , it is arguable that adequacy of reasons arises as a question of law if written reasons are provided without need for a request under s 62, which appears consonant with what was said by Bell P (as Bell CJ then was) in at [55], but see also Ward JA (as Ward P then was) at [110]-[114]. As further acknowledged in the authority just discussed, inadequacy of reasons may represent a failure to consider key evidence and submissions and therefore constitute an error on a question of law in the form of a denial of procedural fairness (see s 38(2) of the NCAT Act) or a constructive failure to exercise jurisdiction.
[42]
(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).
[43]
In Collins v Urban[2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:
[44]
"[76] ...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. ...
[45]
[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long[2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."
[46]
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of para 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne[2014] NSWCATAP 78 at [32]. 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:
[47]
(b) questions of public importance or matters of administration or policy which might have general application; or
[48]
(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;
[49]
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
[50]
(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."
[51]
Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins v Urban the Appeal Panel said:
[52]
"[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
[53]
1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT[2008] NSWSC 717 at [35], Atkinson v Crowley[2011] NSWCA 194 at [12].
[54]
2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA[2013] NSWSC 266 at [153]."
[55]
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in para 12(1)(c) of Sch 4 to the NCAT Act was considered by an Appeal Panel in Owen v Kim[2017] NSWCATAP 26. There the Appeal Panel stated at [37]-[39]:
'In order to fall within this paragraph the appellant must be able to point to evidence which:
[58]
(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'
[59]
[38] In Leisure Brothers Pty Ltd v Smith[2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:
[60]
'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown[2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
[61]
'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros[2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra[2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
[62]
24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'
[63]
[39] As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:
[64]
'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
[65]
In Ryan v BKB Motor Vehicle Repairs Pty Ltd[2017] NSWCATAP 39 an Appeal Panel stated at [10]:
[66]
"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
[67]
The parties were not legally represented at the appeal hearing and there was no grant of leave for legal representation. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally to determine whether a question of law has been raised: Cominos v Di Rico[2016] NSWCATAP 5 at [13].
The appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico v Secretary, Department of Customer Service[2025] NSWCATAP 109 at [45].
We discern from the landlord's notice of appeal that the landlord alleged the following matters which, if made out, constituted errors on questions of law: failure to consider relevant evidence being in respect of the landlord's plumber's investigations and work and consequent failure to give adequate reasons.
We discern from the landlord's notice of appeal that the landlord alleged the following matters which, if made out, required leave to raise: incorrect application of the test in RTA s 44 - which was said, on the authority of Roberts v NSW Aboriginal Housing Office[2017] NSWCATAP 9, to require a total or substantial withdrawal of services whereas there was in the present situation only a temperature variation, with hot water remaining continuously available and functional; insufficient weight to the landlord's plumber's evidence of investigation and work; excessive compensation which was internally inconsistent and overlapping in amounts for the hot water.
The tenants acknowledged that their expressed grounds of appeal required leave. They in effect said that the amounts awarded for each alleged breach - oven, hot water and garage remotes - did not reflect the weight of evidence and were not fair and equitable, in that they did not reflect the seriousness of the breaches in terms of effect and landlord conduct and the consequent severity of harm to the tenants' amenity.
[68]
Anterior to the tenants' complaint on this issue is the confusion in and consequent inadequacy of the primary reasons. At PR [20] the Member said that $50pw was being allowed for loss of amenity, having said at PR [19] that the loss of amenity was for the period of 11 weeks from 1 November 2023 to 16 January 2024 (the latter date being when the tenants were found to have been given landlord consent to install a new oven). At PR [22] the Member then went on to say, without indicating the reason that this figure was derived from the smaller figure for loss of amenity, that this compensation "is about 15 weeks at $100 rent reduction allowing for an assessment of overall amenity of this large home". Again without an expressed chain of reasoning, PR [23] said that "This equates to $1,500 in compensation for loss of amenity and involved in that is not relying on the oven provided and having to consider external and own-effort installation of one".
The significance of these inadequacies for the actual ground raised by the tenants is that it is not possible to discern from them what weight the Member gave to the evidence concerning the nature and time of the breach, the landlord's knowledge of it from the outset of the tenancy and that the tenants had to fix it themselves. Without being able to discern such weight regarding the evidence considered, the decision (with its inconsistent figures and its exclusion at PR [19] of loss on re-sale) was in our view not fair and equitable. There was a significant possibility of a larger amount if the dots had been properly and expressly joined in the reasoning. As was said in Collins v Urban, this was "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", which justifies exercise of discretion by us to grant leave to appeal in respect of the errors.
The tenants do not dispute the award for the period August 2024 to date of vacation (15 weeks) at $300pw which equated to their claimed 10% of the rent, but the landlord did; both parties appealed different aspects of the findings on the period March to July 2024. The same difficulty arises here in PR [25]-[29] and [31]-[32] as arose on the oven issue, from the sparsity of reasoning. This leads to the same difficulties in factual conclusions that have just been pointed out in respect of the oven issue. There is no reasoning analysing the available reports and showing that the weight of evidence favoured acceptance of the tenants' plumber's evidence, or showing the basis for the allowed amount.
[69]
At the outset it should be noted that the tenancy ended on 10 November 2024. After the end of the tenancy there is no facility for a rent reduction as was claimed when proceedings were filed before the end of the tenancy: RTA s 44(3), (6). Any relief must be by way of money order: for example, following notice under s 47. The matters the subject of claim in any event also constituted, where found, a breach of RTA s 52 and/or s 63 and, on the remotes, s 70 and the equivalent provisions in the residential tenancy agreement (respectively, cll 19.1, 19.3, 32.2). We shall make a money order for any relief granted.
Oven issue: The landlord clearly had notice of the non-functioning oven from the tenants' comments, shortly after the tenancy began, in the incoming condition report. The problem was of a nature that clearly pre-dated the beginning of the tenancy but was not fixed before the tenancy began. For a property of this nature and this rent, such was a clear and known breach of RTA s 52 and the equivalent provision in the tenancy agreement in that the premises were not fit for habitation without a working oven. It is also a breach of s 63 and the equivalent provision in the tenancy agreement which requires the landlord to "provide" as well as maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
Despite frequent communications from the tenants, the landlord did not promptly, or at all, fix the issue by providing a new oven. The tenants some months later were forced to do so themselves to have a working oven. They should not have had to expend this amount to buy the new oven.
If the tenants had left the oven in the premises on departure, they would have been entitled to be reimbursed the entire purchase price as compensation for the landlord's breach of RTA s 52.
The tenants, rather, took the oven and sold it at a loss of $4,624. The evidence was not disputed as to the reasonableness of the on-sale price or the taking of the oven. There was no evidence (to the extent, if any, that it was relevant) as to the cost to the landlord of equipping the premises with a replacement oven after the tenants departed, if that was done.
We in any event do not accept the relevance of the cost of a replacement oven after the tenancy ended. The tenants were entitled to be put in the position they would have been in had the contract of tenancy been performed, which was to have but not to pay for a working oven during the tenancy. They mitigated their loss on outlay for the oven by re-selling it. There was no evidence to suggest that they were in breach of the tenancy agreement in the circumstances by taking the oven they bought. What happened after the end of the tenancy in terms of what the landlord did about an oven was irrelevant to calculation of the tenants' loss on this aspect.
[70]
(1) Leave to appeal is granted in respect of both appeals.
(2) Appeal 2025/00298394 allowed.
(3) In exercise of power to re-determine the original proceedings under s 81 of the Civil and Administrative Tribunal Act 2013 (NSW), order that there be substituted for order 1 in 2024/00352184 made on 8 July 2025 (the operation of which was stayed on 13 August 2025 until further order or finalisation of the appeal, whichever was earlier) the following order: 1. Order that Suping Xue pay Anna Korol and Sergey Korol $15,000 immediately.
(4) Each appeal is otherwise dismissed.
(5) Note that time has been extended for filing the respective notices of appeal as follows: in 2025/00291216 to and including 30 July 2025; in 2025/00298394 to and including 5 August 2025.
(6) Any application in respect of costs, together with any application to dispense with a further hearing on costs and written submissions and any further documents relating to costs of the appeal proceedings, are to be filed and served on or before 14 days after date of these orders.
(7) Any written submissions and documents in response are to be filed and served on or before 28 days after date of these orders.
[71]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
[72]
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.
Parties
Applicant/Plaintiff:
Xue
Respondent/Defendant:
Korol [2026] NSWCATAP 74;
Legislation Cited (6)
Civil and Administrative Tribunal Act 2010(NSW)
Administrative Tribunal Act 2013
Tenancies Act 2010
Administrative Tribunal Regulation 2022
Administrative Tribunal Rules 2014
Tenancies Regulation 2019
Cases Cited (5)
(2003) 216 CLR 212
(1987) 10 NSWLR 247
(2011) 243 CLR 181
(1968) 118 CLR 186
(1991) 173 CLR 33
The primary decision on 8 July 2025 awarded $8,995 in compensation from the landlord to the tenants. This comprised, as indicated in the primary reasons (PR): 15 weeks at $100pw, totalling $1,500, in respect of loss of amenity compensation under RTA s 52 for "the delay in providing an oven or addressing the issue until the tenants took the initiative and mitigated their loss" (PR [23]); $100pw from March to July 2024, totalling $1,600, for not sustaining temperature in the hot water system servicing a large and expensive rental house (PR [31]-[32]); $300pw for 15 weeks from August to 10 November 2024, totalling $4,500, based on the tenants' plumber's report of 21 October 2024 and that the landlord's plumber had altered the hot water temperature setting, causing it to rise above the settings in Australian Standards (PR [25]-[29]); reimbursement of the tenants' plumber's report fee of $1,045 (PR [30]), and $350 for buying new garage remotes since there was no evidence that remotes could not be connected to the existing receivers (PR [33]-[34]).
The primary member (the Member) found at PR [19] that any compensation based on the value of the oven was not appropriate since the oven went with the tenants.
In any event, a ground of appeal that the Tribunal failed to provide proper reasons will rarely involve the consideration of a question of law alone, in which case an appellant may still be able to obtain leave to appeal under s 80(2)(b) of the NCAT Act: see Starr v Johnson[2023] NSWCATAP 190 at [37]- [48].
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as set out above, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
The same defect also applies to the findings on the remotes at PR [33]-[34].
The tenants (and in respect of one finding the landlord) have therefore made out relevant errors on questions of fact and the basis for a grant of leave to appeal those errors. We shall accordingly grant leave to appeal and allow the appeals.
It seems to us that the parties' common ground reinforced the sense, in terms of the guiding principle in s 36 of the NCAT Act, of our re-determining the appeal under s 81 of the NCAT Act. We have the material that the parties say they wish to be taken into account on a re-determination.
We now proceed with that task.
We accordingly find that the tenants are entitled to be recouped for their loss of $4,624.
The tenants suffered the loss of amenity and quiet enjoyment from not having a working oven from entry into the tenancy to when the oven they bought was installed. They however have not disputed on this re-hearing the award of $1,500 for such loss of amenity and the landlord has not contested that figure.
The tenants are entitled to a money order against the landlord for $6,124 on the oven issue.
Hot water issues: The tenants relied upon a relatively comprehensive report dated 21 October 2024 from a plumber they engaged. The report was written shortly after a comprehensive inspection described in the report.
The report pointed out the following: the hot water system's manufacturer stated on its website that it was designed for 2-3 bathrooms and 2-4 bathrooms in warmer climates; the gas supply was undersized to service a large cooktop/oven and the water heater; with two showers turned on hot there was insufficient gas flow pressure "hence why fluctuating hot water being delivered at the outlet fixtures"; there should be a minimum 2-3 showers being able to operate without hesitation on the manufacturer's specifications; turning on the cook top "evidently will choke the heater"; the gas service required upgrading under the Australian Standard; there was insufficient gas pressure to overcome the impact of water efficiency devices at outlets when the system required free flow, with consequent effect on water pressure and temperature fluctuation; all bathrooms were not compliant with temperature control devices.
There was no indication that the reported defects were recent and their nature inferred they were long-standing.
There was no detailed expert report qualifying or contradicting each of the matters in the tenants' plumbing report.
Rather, on 24 July 2024 the managing agent reported to the tenants that the landlord's plumber "was unable to give a definite answer on why the water is taking time to heat up and why the pressure changes. He advised that it is most likely due to the distance from the water heating to the shower; he could try replacing the hot water system but unable to guarantee that will fix the problem. At the current stage, the owner will not be committing to replacing the hot water system due to the uncertainty of the issue, the cost involved, and since it is still functional". What the landlord's plumber reported was consistent with and did not challenge the lack of functionality experienced by the tenants; rather, it could not diagnose the reason.
The landlord's plumber's own report of 2 October 2024 simply said that the hot water unit and tempering valve were functioning correctly, producing 50-degree temperature water and that the installation complied with the relevant standard and no non-compliant issues were identified during inspection. The report was not indicated to be contemporary to inspection. A letter from the same plumbing firm dated 9 July 2024 had said that the system was "very old" but was "currently working", priced a new system at $2,850 excluding GST and was "not guaranteed to fix the issue" and that a 50m gas re-run to upsize gas pipes at $3,500 plus GST was needed but was also "not guaranteed to fix the issue". The upsizing was consistent with the tenants' plumber's report.
The tenants' plumber's opinions were consistent with photographic and video evidence.
There was significant delay in the landlord's sporadic attention to the hot water system, as shown in the chronology in the landlord's documents.
One is left with the following position on the evidence as a whole: no effective challenge to the symptoms reported by the tenants; expert opinion on likely cause of the symptoms from the tenants' expert; at best a response to that opinion which cannot identify the cause.
The symptoms identified in the evidence, contrary to the landlord's position reported by the managing agent, did not reflect a functional system but, rather, a system that could not deliver enough gas for cooking and hot water and consistent temperature control for large premises of this quality and expense (in terms of rent). The landlord's response, to quotations that were not large in themselves, was apparently to do nothing, it appears because the attempted fix may not resolve the issue. This is a clear breach of RTA s 63. It is also not consistent with quiet enjoyment of the premises at a level of amenity consistent with their nature and the rent charged.
The tenants did not challenge the rate of compensation of $300pw (the 10% reduction in effect that they claimed), only that it should be uniformly applied from 3 March to 10 November 2024. We respectfully agree. The landlord pointed to no evidence differentiating the two periods and the tenants' expert plumbing report, as already said, was consistent with that position. There was no challenge to the accuracy of the calculation of the amount of $10,842.86 for that entire period at the rate of $300pw.
Garage remotes: There was no evidence that the amount that the tenants had paid, of $844, to supply and install a new remote system for the garage door, was unreasonable for what was supplied. There was no challenge to the landlord's obligation, under RTA s 70(2) and the equivalent provision in the tenancy agreement, to provide two remotes (each of which worked the range of items requiring a remote) since both husband and wife were named as tenants in the tenancy agreement. This obligation was breached and was not remedied despite request, which was met with refusal. The tenants could not source a remote compatible with the installed system to mitigate their loss of amenity. It was a reasonable avenue of mitigation, after notice to and continuing inaction or refusal by the landlord, to install a compatible system - remotes and wall mounted unit.
We have not taken into account, as we do not consider it to be relevant, the enduring benefit to the landlord after the tenancy ended from the remote system remaining in place.
Overall outcome: The tenants have established a basis for compensation in the total amount of $17,810.86. The money order, consistent with their waiver of excess of jurisdictional limit, will be for $15,000.
Plumbing report cost: We accept the landlord's submission that, on the principles outlined in the following paragraph (particularly the italicised words), the cost of the tenants' plumbing report obtained after commencement of proceedings ($1,045) is properly allocated to costs of the proceedings.
Rather than constituting a head of damages, costs will include the assessed or agreed amount for the expenses on expert reports prepared for the purposes of the proceedings or, if prepared for other purposes, sufficiently connected with the proceedings to be "costs of, or incidental to, proceedings" within the meaning of s 60 of the NCAT Act since they have been incurred in the preparation for litigation and were preparatory steps reasonably connected to the proceedings: Cominos v Di Rico [No 2][2016] NSWCATAP 138 at [54-[57]; Owners SP 21563 v Rutherford[2023] NSWCATAP 326 at [52], [67]-[68], [95]-[96].
We have accordingly made provision for any application for costs and submissions and any further documents in that respect.
In respect of costs, parties should read carefully and before making an application the provisions concerning costs in s 60 of the NCAT Act and rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW).