Zhao v Furlong

1. The Appeal Panel has confirmed that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law": see Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23].
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40], the Appeal Panel set out the authorities and principles concerning questions of law within s 80 of the NCAT Act, including:

1. In Cusumano (at [32(4)]), after summarising potential questions of law identified in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel listed a number of further questions of law and considered a question of law could include:

"Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA)."

1. In an internal appeal, an appellant must demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]. Nor does an appeal provide a losing party with the opportunity to run its case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. In the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must also satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 to the NCAT Act on the basis that:

1. Even where those conditions for the grant of leave are satisfied, the Appeal Panel has a discretion to grant leave which will generally only be exercised in the circumstances set out in Collins v Urban [2014] NSWCATAP 17 at [84(2)]:

1. Ground 2 was argued as an alternative to Ground 1 and is said by the appellants to raise mixed questions of fact and law, therefore leave is required.
2. We do not adopt the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]- [51] to discern a question of law on this ground because Mr Zhao is not a self represented litigant without legal qualifications or experience.
3. The appellants submit that the Tribunal made an error by miscalculating the appropriate rent reduction because the Tribunal did not factor in that the appellants had already provided a 50% rent reduction for the period 26 October 2023 to 20 November 2023 and further the Tribunal conflated the rent reduction with compensation for distress and disappointment by offsetting between the sums calculated.
4. As to rent reduction, the appellants submit the proper amount calculated in rent reduction for the relevant period should have been $3,148.14, not the $4,410.71 calculated by the Tribunal under s 44(1)(b) of the Residential Tenancies Act 2010 and set out at paragraph 16(1) of the Tribunal's reasons.
5. Paragraph 17 of the Tribunal's reasons relevantly provide:

1. The appellants submit that the amount of compensation for distress and disappointment awarded to the respondent by the Tribunal, as calculated at paragraph 17 of the Tribunal's reasons (set out at [45] above), was excessive and, we understand, unreasonable in a legal sense.
2. In Wilair Building Supplies v Brereton [2015] NSWCATAP 3 after considering relevant authorities as to the scope of legally unreasonable error (at [24]-[27]), the Appeal Panel quoted Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72] and then stated (at 29]):

"Their Honours nevertheless made clear at [66] that there remains, in most discretions conferred by statute, an area for the decision-maker where there is a genuine and free discretion which may be exercised one way or another within the bounds of legal reasonableness, and in that regard the courts are not to undertake merits review of that exercise of discretionary power: see also New South Wales v Beck [2013] NSWCA 347."

1. The appellants cited Ramjan v Tang [2022] NSWCATCD 98 to support their contention that the relevant compensation was excessive. The facts of that case involved impact from a water leak where damage included the single bedroom could not be used between 23 February 2022 and 20 June 2022 where $2,500 in compensation for distress and disappointment was awarded. We do not consider such comparison establishes it was legally unreasonable for the Tribunal to award the amount of compensation in the exercise of its discretion in this case. Therefore, no error of law on this ground is made out.
2. Further, we would not grant leave on this ground as we are not satisfied the appellants may have suffered a substantial miscarriage of justice.

(2020) 103 NSWLR 479