YRF v Karnikowski

1. This was an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') against a decision made in the Consumer and Commercial Division of the Tribunal on 18 December 2024.
2. The appellant was the former tenant of residential premises at Golden Beach, in NSW ('the premises'). The respondents to the appeal were the landlords and are the owners of those premises. For convenience, the parties will be referred to as the tenant and the landlords.
3. For the reasons set out below, we have decided to dismiss the appeal.

1. The parties entered into a residential tenancy agreement on 14 March 2024 for the premises, for a period of six months, from 5 April 2024 to 3 October 2024.
2. There was an exchange of emails between the parties prior to the tenant signing the residential tenancy agreement and the tenant did not undertake an inspection of the premises prior to entering into the residential tenancy agreement.
3. The tenant occupied the premises from 10 April 2024 to 17 April 2024 and vacated them due, she alleged, to extensive mould and undisclosed previous flooding of the premises.
4. At the end of April 2024, the parties agreed by email that the landlord would return the bond in full to the tenant, as well as all rent paid.
5. There is a dispute between the parties as to whether the email exchange was an enforceable settlement agreement and thus a defence to any further claim by the tenant.

1. The initiating application to the Tribunal was lodged on 2 July 2024 by the tenant. She sought an order under s187(1)(d) of the Residential Tenancies Act 2010 (NSW) ('the RTA') for compensation of $15,000.00.
2. That amount was subsequently amended so that the claim was for an amount of $15,068.91 for economic loss and $9,300.00 for non-economic loss but the appellant agreed that the jurisdictional limit of the Tribunal for a matter of this type was $15,000.00.
3. The tenant alleged that:

"The landlord's and agent's breaches of the Residential Tenancies Act (ss 29, 63 and 188) has resulted in economic and non-economic losses including inconvenience, indignation, health impacts, loss of enjoyment and discomfort."

1. The matter was listed for hearing before the Tribunal on 18 October 2024.
2. The landlords denied breaching the RTA. They stated that they had acted reasonably and had no responsibility for the health issues of the tenant; that her claims were unreasonable, excessive and not supported by evidence; and that they had complied with the terms of an agreement which settled the dispute.
3. The Tribunal relevantly found that:

(1) The parties entered into a residential tenancy agreement for 6 months commencing on 5 April 2024 and ending on 3 October 2024 for a weekly rent of $1050.00.

(2) The tenant took occupation of the premises on 10 April 2024 and was provided with an incoming inspection report by email on 11 April 2024. She returned it on 17 April 2024.

(3) On 17 April 2024 the tenant vacated the premises. The tenancy terminated on 17 April 2024 when the tenant gave up possession of the residential premises with the consent of the landlords.

(4) There were offers and counter offers between the parties regarding termination of the tenancy.

(5) The agreement reached on 25 April 2024 between the tenant and landlords about the terms of termination was based upon the landlords' acceptance of a counteroffer of the tenant. The agreement to resolve the dispute was complete and left nothing to be settled by further agreement (at [42] of the original decision).

(6) Acceptance of the tenant's counteroffer was conditional upon her receiving a refund of her rent and bond by 4pm on 26 April 2024. She received that in compliance with the terms of her counteroffer (at [44].)

(7) The objective intention of the parties was to be bound by an acceptance of the counteroffer (at [48]).

(8) The words 'without prejudice' in the tenant's counteroffer afforded the tenant protection in the event a settlement was not reached, but did not mean that the tenant reserved her rights to make further claims against the landlords (at [49] and [51]).

(9) A legally binding and enforceable agreement was reached on 25 April 2024 to settle all matters arising from the tenancy (at [52]).

1. The Tribunal therefore dismissed the tenant's application. She now appeals against that dismissal.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'). The NCAT Act states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds.' (s 80(2)(b))

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"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.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division pursuant to section 80(2)(b) of the NCAT Act, otherwise than because of a question of law only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice may have been suffered:

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

1. Even if the Appeal Panel is so satisfied, there is a discretion to grant leave, and at that second stage Collins v Urban identified further principles to be considered, namely (at [84]):

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact...;

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

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

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

(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: [citations omitted]."

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. The Notice of Appeal was lodged on 25 February 2025.
2. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ('the Rules') the application should have been lodged within 14 days of the tenant receiving the Tribunal's decision.
3. In the Notice of Appeal the tenant states that the decision was received on 18 December 2024.
4. Rule 6 deals with the reckoning of time and in the circumstances of this matter requires the period of 14 days to be counted from and including 19 December 2024 and without regard to public holidays (see Liberant v Brisbane Water (NSW) Legacy Club [2017] NSWCATAP 132 at [14]).
5. Fourteen days from 19 December 2024 is 1 January 2025. However, on that day the Appeal Registry was closed and did not open until 6 January 2025.
6. Pursuant to r 6(4), the last day for lodging the appeal was 6 January 2025.
7. Therefore, the Notice of Appeal was lodged 50 days late.
8. The Reply to Appeal states that the landlord objects to the Appeal Panel extending the time for the lodging of the appeal.

1. Section 41 of the NCAT Act allows the Appeal Panel to make an order extending time for the filing of the appeal, if satisfied that leave should be granted.
2. In determining whether to extend time, the relevant factors to consider are identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") at [22]) and include the length of the delay, the reasons for the delay, the merits of an appeal (usually whether the appellant has a fairly arguable case) and the extent of any prejudice suffered by the respondent.
3. We consider a 50-day delay in lodging the appeal to be significant.
4. The landlords oppose an extension of time being granted to file the appeal.
5. The tenant's explanation for her delay is that she was overseas between 11 December 2024 and 9 January 2025, during which time she fell ill. She fell ill again around 10 January 2025 with rhinovirus. Between 9 February 2025 and 14 February 2025, the tenant was in Sydney for work reasons and did not have the documents required to prepare the appeal. She was sick again on 17 and 18 February 2025.
6. The tenant says she originally lodged her appeal on 24 January 2024, but delays were caused when her request for a fee waiver was rejected, and she overlooked the email requiring payment. The appeal was dismissed for non-payment. These are the tenant's errors and we do not consider they are a reasonable explanation for the delay.
7. The travel documents submitted by the tenant confirm the dates of travel.
8. While the medical documents provided by the tenant confirm the diagnoses, they do not identify how her medical conditions prevented her from lodging the appeal in time (see Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80 and the authorities discussed therein regarding the sufficiency of medical evidence).
9. The tenant's explanation for the delay is therefore less than satisfactory. This weighs against granting an extension of time.
10. For the reasons which we explain below, taking into account the grounds of appeal and the parties' submissions, we consider that the appeal does not have more substantial merit than merely being fairly arguable (see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59]).
11. Therefore, on balance, we are not persuaded that an extension of time should be granted for the filing of the appeal.

1. If successful in the appeal, the tenant seeks a number of orders including that:

(1) The Appeal panel 'reconsider' the dismissal of her application and allow her to pursue compensation;

(2) The landlords reimburse her for the cost of obtaining a mould report, an amount of $1750.00;

(3) The landlords provide records about the warning from Fair Trading.

1. The grounds of appeal specified in the Notice of Appeal are in summary:

(1) Whether the Tribunal failed to adequately apply the legal standards for assessing duress and unconscionable conduct in enforcing settlement agreements;

(2) Whether new evidence from Fair Trading NSW ought to be admitted into evidence in this appeal;

(3) Whether the Tribunal's decision was not fair and equitable as 'it focussed on enforcing the settlement agreement without sufficiently addressing the substantive injustice caused by the landlords' and agents' (sic) conduct';

(4) Whether the Tribunal's decision 'focussed on the technical enforcement of the settlement agreement, disregarding the significant power imbalance and injustice caused by the landlords' and agents' (sic) conduct.'

1. Ground 1 raises a question of law and an appeal may be brought as of right.
2. We understand Ground 2 to be whether significant new evidence was now available that was not reasonably available at the time of the hearing. This requires leave of the Appeal Panel.
3. Grounds 3 and 4 raise similar issues, whether the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. Leave is required.

1. In reply to the tenant's grounds of appeal, the landlords state:

(1) They support the Tribunal's original orders which were made after a thorough and fair process;

(2) There was no flooding at the premises;

(3) There was no causal link between external water pooling (which never entered the home) and internal mould issues;

(4) The landlords were unaware of any mould in the premises during their occupancy;

(5) The settlement reached between the parties was voluntary, transparent and without coercion and finalised the dispute.

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal lodged on 20 February 2025

(2) The Reply to Appeal lodged on 13 March 2025

(3) Appellant's submissions made as part of her Notice of Appeal and her submissions lodged on 28 June 2024 at first instance

(4) Respondents' submissions lodged on 5 May 2025

(5) Email from Michael Harrison dated 7 November 2024

1. On 9 May 2025, after the conclusion of the appeal hearing, the Appeal Panel received an email from the tenant with further written submissions and seeking an extension of time to submit a transcript of the Tribunal proceedings and the full 'mould report' by East Coast Building Biology, dated 16 April 2024. The mould report was attached to the email. The transcript was not.
2. We refuse an extension of time to submit these documents in circumstances where the appeal proceedings have concluded. The prejudice to the landlords would be significant. By the orders of 14 March 2025, the tenant was aware that, by 11 April 2025, she should submit all the evidence given to the Tribunal at first instance on which she intended to rely, as well as the transcript. There is no satisfactory explanation as to why the tenant did not do so.

1. Ground 1 of the appeal is whether the Tribunal failed to adequately apply the legal standards for assessing duress and unconscionable conduct in enforcing settlement agreements.
2. For the following reasons, we have concluded that there is no evidence of behaviour by the landlords (or their agent) necessary to establish duress or unconscionable conduct.
3. The relevant principles regarding duress and unconscionable conduct have been considered in a number of Appeal Panel decisions, including Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99, McDonald v McDonald [2016] NSWCATAP 252, T_urk v NSW Land and Housing Corporation_ [2019] NSWCATAP 207 (Turk) and by the NSW Court of Appeal in Australia & New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149 (Karam).
4. The decision relied on by the tenant, Thorne v Kennedy [2017] HCA 49, does not go against the principles outlined in those cases.
5. At [55] - [59] the Appeal Panel in Turk referred to Karam and said:

"At [66] the Court confined the concept of duress and explained how it fit with other equitable and statutory doctrines and rights. The Court said:

The vagueness inherent in the terms "economic duress" and "illegitimate pressure" can be avoided by treating the concept of "duress" as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party. Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio.

Thus, the Court, in a decision binding on the Tribunal, has said that duress is limited to circumstances where there is threatened or unlawful conduct involving the person, or the person's commercial and financial interests.

After reviewing a number of duress authorities Ward J, in A v N and Anor [2012] NSWSC 354 observed at [509] that:

... the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure, as these cases all exhibit a high degree of threatened violence.

In this case, there was no threat of the relevant kind, nor unlawful conduct, in relation to the appellant and his decision to agree to the consent orders. There was some pressure, but no threat or unlawful conduct."

1. The same could be said in the present appeal. The tenant may have experienced financial pressure, including because of the rent and bond she had paid, and she may have been sick, whether because of mould or otherwise. However, the tenant has not identified any conduct of the landlords or their agent which would amount to threatened or actual unlawful conduct.
2. The inspector informing the tenant that it was unsafe to remain in the premises due to the mould was not conduct by the landlords. First-hand evidence of that opinion and the basis for it was not relied on at first instance.
3. When informing the tenant that if she did not give up her claim for reimbursement of the mould report, the landlords would seek a break lease fee, the agent was asserting the landlords' legal right under the RTA. This is not duress, nor is the correspondence from the agent and the landlords' lawyer.
4. The tenant's subjective feelings of being intimidated and overwhelmed do not, without more, establish duress by the landlords.
5. In McDonald v McDonald [2016] NSWCATAP 252 at [59] the Appeal Panel explained the meaning of unconscionable conduct:

"With respect to ... as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party."

1. In Australian Securities and Investment Commission v Kobelt [2019] HCA 18; (2019) 368 ALR 1 the High Court considered the legal principles regarding unconscionable conduct in the statutory context which shed light on the circumstances to be considered in this case.
2. The taking advantage of the special disadvantage or vulnerability requires conduct of such a degree that it can be characterised as victimisation, exploitation, predatory, or conduct so outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience (per Kiefel CJ and Bell J at [14]; Gaegler J at [92]; Keane J at [118]).
3. It is not enough that the transaction might be described as unfair: per Kiefel CJ and Bell J at [47]; Keane J at [120]; Nettle and Gordon JJ at [234]).
4. The unconscionable conduct must relate to the actual transaction in question, in this case, the email agreement of 25 April 2025.
5. It cannot be said on the evidence before the Tribunal, or before the Appeal Panel, that the circumstances the tenant experienced at the relevant time met that high threshold of a 'disabling condition' or seriously impaired her ability to make a judgement in her own interests.
6. To the contrary, the Tribunal's reasons outline the negotiations between the parties leading up to the agreement which show the tenant clearly advocating for her own interests, ultimately making a judgement that the agreement would 'save time and money'.
7. The landlords made an agreement which they likely considered was in their commercial advantage. However, there is no evidence that they took unconscientious advantage of, or exploited, the tenants' circumstances.
8. This ground of appeal therefore fails.

1. By this ground the tenant contends that significant new evidence is now available that was not reasonably available at the time of the hearing, being an email from NSW Fair Trading.
2. At the first instance hearing and on appeal, the tenant argued that the premises had flooded prior to the tenancy and were affected by black mould and that these matters had not been disclosed prior to her entering into the residential tenancy agreement.
3. In her Notice of Appeal, the tenant states:

"Since the decision was made, NSW Fair Trading has determined that the respondent's agent was dishonest with me and in breach of the legislation. The Disciplinary Action Unit issued an official warning because the agents deliberately concealed that the property had flooded. Damien from Fair Trading NSW can be contacted to confirm this on 02 XXXX XXXX."

1. The Notice of Appeal states that because the Fair Trading investigation had not been completed at the time of the original hearing, this evidence was not available. Further:

"This new evidence directly supports my appeal by confirming that the agents acted dishonestly and breached their obligations, contributing to the circumstances of duress under which I accepted the settlement."

1. The relevant legal principles were set out by the Appeal Panel in The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 (JPG Investments) at [167] to [170] as follows:

"An appellant does not have an unfettered right to adduce fresh evidence about events that have occurred subsequent to the hearing. As the Appeal Panel stated in Chapman v McLaughlin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.'

The ability to adduce fresh evidence arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, the Tribunal must be satisfied that the appellant suffered a "substantial miscarriage of justice" in the sense there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the fresh evidence of Mr Clee had been before the Tribunal at first instance (Collins v Urban at [76]-[79]).

Further, the "concept of substantial miscarriage of justice refers to the failure in the way a matter was conducted or decided that which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred" (Collins v Urban at [71]). The concept focuses upon the manner in which the hearing was conducted or decided, not fresh events that have occurred since the date of the Tribunal hearing.

The purported new evidence must not only be "significant," but it must also be evidence that was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence" (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23])."

1. The 'significant new evidence' was an email dated 7 November 2024 which the tenant had obtained pursuant to the Government Information (Public Access) Act 2009 (NSW) ('the GIPA email').
2. The email was sent by Michael Harrison, Inspector, Property Compliance and Investigations Directorate, NSW Fair Trading.
3. The email had been provided to the Appeal Panel and also to the real estate agent formerly engaged by the landlords, but it had not been received by the landlords.
4. When provided with the document at the appeal hearing, the landlords indicated that they could meet it and provide their submissions in relation to it. On that basis the Appeal Panel granted the tenant an extension of time and admitted the GIPA email into evidence.
5. We accept that the GIPA email was not available at the first hearing.
6. Whilst the GIPA email confirms that the landlords' agent failed to disclose a material fact prior to entering a tenancy agreement for the residential premises in dispute, it does not identify whether the tenant was a party to that tenancy agreement, or whether it relates to some other tenancy agreement.
7. Further, as the tenant conceded, the GIPA email does not specify the material fact which was not disclosed.
8. The tenant suggests that the Appeal Panel make its own enquiries of Mr Harrison, the email's author, to ascertain the material fact. However, it is the obligation of the parties to present their own evidence to the Appeal Panel. The Appeal Panel is not an investigatory body and it would not be procedurally fair for it to make independent enquiries about factual issues in dispute.
9. The tenant contends that the agent's failure to disclose alleged flooding contributed to the circumstances of duress under which she accepted the settlement. However, as explained above, we are not persuaded that the tenant acted under duress.
10. There is therefore no new evidence before the Appeal Panel that the property had flooded prior to the tenant signing the tenancy agreement.
11. It follows that we are not satisfied that the new evidence is significant because the tenant was not deprived of a significant possibility of a more favourable outcome.
12. Even if we are wrong in this regard, we would not exercise our discretion in relation to any of the categories in Collins v Urban.
13. We refuse leave to appeal on this ground.

1. Grounds 3 and 4 raise similar issues, that the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. The tenant contends that:

(1) The Tribunal's decision was not fair and equitable as 'it focussed on enforcing the settlement agreement without sufficiently addressing the substantive injustice caused by the landlords' and agents' (sic) conduct'; and

(2) The Tribunal's decision 'focussed on the technical enforcement of the settlement agreement, disregarding the significant power imbalance and injustice caused by the landlords' and agents' (sic) conduct.'

1. For the same reasons we have explained above, we are not persuaded that the tenant suffered any injustice at the hands of the landlords or their agent. Nor has the tenant established that 'a significant power imbalance' existed between the parties, beyond normal commercial relations where it is usual for parties to seek a financial outcome in their own favour.
2. The tenant claims not to have fully understood the term "without prejudice" which she used in the settlement negotiations. This was dealt with in the decision at first instance at [51] where the Member stated that the effect of using those words was as follows:

"The words "on a without prejudice basis" afforded the Tenant protection in the event the parties did not settle the dispute. Her counteroffer would be inadmissible in any future proceedings and accordingly, she would suffer no prejudice in making the counteroffer."

1. This is an accurate statement of the effect of using those words. The tenant's subjective intention is not the standard to be applied. The words did not carry with them the consequence that the tenant was reserving her rights to continue with the application to NCAT.
2. We reject the contention that the Tribunal incorrectly focussed on the 'technical enforcement' of the settlement agreement. Rather, the Tribunal correctly applied the relevant legal principles to the circumstances of this case.
3. As a matter of law, the intention of the parties is to be assessed objectively. The parties had entered into legal relations by signing a residential tenancy agreement and then conducting negotiations about its termination. If a party so conducts itself as to induce another reasonably to believe that it assents to certain terms, then that party may be held to have assented, whatever the actual state of mind may have been: Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 428-429; Wilson v Anderson (2002) 213 CLR 401 at 418; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462; Toll (FGCT) Pty Ltd v Alpapharm Pty Ltd (2004) 219 CLR 165 at 177-180.
4. An objective consideration of the words used in the offer and counteroffer shows that the intention of both parties was to resolve the matter on a final basis. The statement by the appellant that she did not have that subjective intention does not make the agreement reached any less enforceable.
5. Thus we are not persuaded that the Tribunal's decision was not fair and equitable.
6. Even if we are wrong in this regard, we would not exercise our discretion in relation to any of the categories in Collins v Urban.
7. We refuse leave to appeal on this ground.

(1) Leave to extend time to file the appeal is refused.

(2) Leave to appeal is refused.

(3) The 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.