Civil and Administrative Tribunal New South Wales Medium Neutral Citation: A L Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 Hearing dates: 28 February 2023 Date of orders: 18 July 2023 Decision date: 18 July 2023 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member M Gracie, Senior Member Decision: (1) Appeal allowed, in part. (2) Matter remitted to the Tribunal Member at first instance to determine whether the amounts identified in Orders 1 and 2 are amended to reflect the amounts in paragraph [19] of the reasons dated 2 December 2022 in Matter RT 22/31478 or whether paragraph [19] of the reasons is amended to reflect the amounts identified in Orders 1 and 2. (3) Appeal otherwise dismissed. (4) Any party seeking to make a costs application is to inform the Appeal Panel and the other party in writing within 14 days of the date of this decision that a costs application is made. Catchwords: LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Rent reduction---Withdrawal or reduction of facilities---Failure to repair---Quantum of rent reduction---Applicable principles –Questions of law--leave to appeal—reasons inconsistent with orders--remitter Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Public Health (COVID-19 Self-Isolation) Order 2022 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Bannister v Cheung [2014] NSWCATCD 105 Bhandari v Laming [2015] NSWCATAP 224 BHP Billiton Ltd v Dunning [2015] NSWCA 55 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Croghan v Rees [2021] NSWCATAP 328 Dimunova v Vega [2017] NSWCATAP 5 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 Geracitano v Cloughessy [2021] NSWCATAP 329 Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 Hayes v Williamson [2015] NSWCATAP 268 House v The King (1936) 55 CLR 499 Hu v Roggeveen [2022] NSWCATAP 295 Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 Lazaris v Kale [2022] NSWCATAP 36 Makowska v St George Community Housing Ltd [2021] NSWSC 287 McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 Newport v Pittman [2022] NSWCATAP 150 NSW Land and Housing Commission v Orr [2019] NSWCA 231 Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 Tuckwell v Ientile [2022] NSWCATCD 124 Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Watson v Chen [2022] NSWCATAP 44 Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 ZEJ v ZEL [2018] NSWCATAP 252 Texts Cited: None cited Category: Principal judgment Parties: A L Lindsay & Co Pty Ltd (Appellant) Alicia Stickel (Respondent) Representation: M Ardern, Agent (Appellant) Respondent (Self-represented) File Number(s): 2022/378288 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 02 December 2022 Before: S De Jersey, Tribunal Member File Number(s): RT 22/31478 REASONS FOR DECISION Introduction 1. The appellant landlord ('landlord') appealed from a decision made in the Commercial and Consumer Division of the Tribunal ('Tribunal') on 2 December 2022, making orders in relation to the maximum rent that was payable over a 12-month period by the respondent tenant ('tenant'). The dispute involved the provisions of the Residential Tenancies Act 2010 (NSW) ('Act'). 2. The tenant's occupation of the premises was pursuant to two Residential Tenancy Agreements ('RTAs'): 1. RTA dated 17 August 2017 ('first RTA') for a 12-month term, commencing on 8 September 2017 and ending on 9 September 2019, with a subsequent holding over until 4 March 2022. The rental bond was $3,400; and 2. RTA dated 24 February 2022 ('second RTA') for a 6-month term, commencing on 4 March 2022 and ending on 3 September 2022. The rental bond was noted on the second RTA as "held." The tenant vacated the premises on 17 July 2022. 1. The rent under the first RTA was $850 per week and was increased to $875 per week from July 2021 until 4 March 2022. The rent was reduced to $750 per week when the second RTA commenced on 4 March 2022. 2. The Tribunal found that the reduction of the rent was attributable to a request made by the tenant in February 2022 when the tenant's family arrangements changed and her husband was hospitalised: [5]. That finding was consistent with the relatively short duration of the second RTA of 6 months and it being signed on 23 February 2022, with the reduced rent of $750 per week commencing from 4 March 2022. 3. The tenant and her family occupied the premises: [5]. The Tribunal described the premises as a 3 or 4 bedroom home (depending on its configuration) with a large outdoor studio: [5]. The Tribunal also found at [5]: During the tenancy, the tenant undertook a number of repairs and improvements at her cost and with the consent of the landlord such as interior painting [and] planting a rear garden. The landlord also undertook a large number of repairs and responded promptly to issues. 1. The tenant filed an Application ('Application') in the Tribunal on 13 July 2022 (i.e. 4 days before the end of tenancy), seeking an order that the weekly rent to be reduced to $288.46 under s 44(1)(b) of the Act on the basis that the rent was excessive due to the landlord's reduction or withdrawal of services or facilities, and/or s 45 where the premises were unusable or uninhabitable. The tenant also sought an order under s 65(1) (a) of the Act requiring the landlord to carry-out repairs. 2. As in this appeal, at the hearing before the Tribunal, the tenant was self-represented and the respondent, with leave granted on 18 January 2023, was represented by Ms M Ardern. Ms Ardern is a property manager at the licensed agent with whom the landlord had a managing agency agreement. The agent was the entity responsible for approving maintenance and repairs and for making payments of trade invoices on behalf of the landlord, subject to the instructions of the landlord and the terms of the managing agency agreement between the landlord and the agent. Mr A Lindsay, a director of the appellant, attended the hearing below and the hearing of the appeal. Decision of the Tribunal 1. The tenant's Application was filed with the Tribunal on 29 September 2022. At the hearing before the Tribunal on 25 November 2022, the tenant was given leave to amend her Application to also bring a claim for compensation 2. The tenant's claims pursued at the hearing are set out at [2] of the Tribunal reasons, as: 1. Rent reduction under 44(1)(b) of the Act, claiming $288.46 per week for the last 12 months of the tenancy from 16 July 2021 to 15 July 2022, due to the landlord's alleged failure to address issues of water ingress and mould in the premises. 2. Compensation of $1,965.04 comprising: 1. $500 for loss of quiet enjoyment; 2. $1,250 for the tenant's time, and that of her daughter, to clean the premises at the end of the tenancy; and 3. $215.04 for the cost of cleaning products. 1. The Tribunal found that it was not satisfied that the tenant had established the grounds required to make the orders sought by her. The factual issues considered by the Tribunal are at [7]-[18] and the relevant findings are summarised as follows at [19]]: 1. During the period from 16 July 2021 to 25 November 2021, there were: … ongoing issues with the outdoor studio "which had water leakage issues and the landlord knew it was leaking as complaints had first been made on 26 March 2020 and the landlord knew that effective repairs could not be made. 1. 26 November 2021 to the end of the tenancy on 15 July 2022 was: … the period in the main house there were a number of leaks and resultant mould and it had been reported on 26 November 2021 by the tenant, but the issues not rectified until after the tenant vacated. Despite the rent being lower for other reasons and despite the tenant knowing the condition of the property as being old when she moved in; these factors do not exempt the landlord from the obligations under s 63 of the Act. I am satisfied that the roof or at least a major repair was needed to the studio and the house to stop leaks, and these repairs were not done during the tenancy which caused a significant reduction in amenity. Nor is it an answer to say the tenant could have vacated without penalty. The tenant was entitled to live in a house with her family without concern of regular leaks and the resultant mould which I accept she had to spend many hours cleaning just to provide a clean environment for her children. 1. At [20], the Tribunal said: I reject the landlord's submission that the tenant refused entry and this should have been taken into consideration. I accept the tenant's evidence that they had COVID and this was the reason why the [landlord's] contractors were not permitted access; this was more than reasonable. 1. The Tribunal ordered: 1. for the reasons set out at [19]-[20] that: 1. the rent to be reduced to not exceed $650 per week from 16 July 2021 to 25 November 2021; 2. the rent to be reduced to not exceed $500 per week from 26 November 2021 to 15 July 2022; and 1. for the reasons set out at [21]-[22], that the balance of the Application be dismissed, including the claim for compensation, except for the claim of $500 for the loss of quiet enjoyment of the premises. 2. The amount paid by the tenant for rent in excess of the prescribed rent ordered in the rent reduction be repaid to the tenant immediately. 1. The Tribunal did not make a finding or money order that quantified the amount that was payable to the tenant in respect of the consequential over-payments, including the amount allowed for the loss of quiet enjoyment. On the appeal, this created some uncertainty as to the amount payable to the tenant. 2. Further, despite making a finding at [23] that the tenant was entitled to damages of $500 for loss of quiet enjoyment due to the effect of water leaks in the premises that caused mould and constant cleaning by the tenant, the Tribunal did not make a money order that the landlord pay the tenant $500. 3. On the appeal, the tenant quantified the sum payable to her as follows: 1. Excess rent of $4,275 paid by the tenant for the period 16 July 2021 to 25 November 2021 ($225 x 19 weeks); 2. Excess rent of $5,250 paid by the tenant for the period 26 November 2022 to 3 March 2022 ($375 x 14 weeks); 3. Excess rent of $4,750 paid by the tenant for the period from 4 March 2022 to 15 July 2022 ($250 x 19 weeks) 4. Compensation of $500 for loss of quiet enjoyment. 1. The landlord did however contend that Orders 1 and 2 are inconsistent with the findings made by the Tribunal in [19], which would instead equate to a reduction in rent of $10,185.71. 2. Despite the parties disputing whether the reasons of the Tribunal were inconsistent with the orders of the Tribunal, neither party made an application to the Member to amend the decision under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'). Further, neither party made an application to the Tribunal to vary the orders under s 188 of the Act. Grounds of appeal 1. The Notice of Appeal was lodged within time on 15 December 2022: r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('NCAT Rules'). 2. The landlord contended in the Notice of Appeal that the "rent reductions ordered are excessive and the amounts ordered are requested to be substantially decreased or completely disregarded." 3. The landlord sought leave to appeal. 4. There were five grounds of appeal raised by which the landlord in seeking leave on the basis that the Tribunal's decision was "not fair and equitable." The landlord also sought leave on the basis that the decision was "against the weight of the evidence." 5. In summary (and using our brief description for convenience), the first five grounds, contending that the decision was "not fair and equitable" are: Ground 1: Studio – lack of reasons; no evidence 1. The rent reduction for the period 16 July 2021 to 25 November 2021 was not reasonable and is excessive. The reduction related to the outdoor studio. The order was made with no supporting factors or evidence. There is no explanation of the calculation by which the amount of the reduction was ordered. The reduction is a 26% reduction in rent for a minor issue in a secondary building on a very large property of which the studio building was a minor part. Ground 2: House – lack of reasons; no evidence 1. The rent reduction for the period 26 November 2021 to the end of the tenancy on 15 July 2022 is unreasonable and excessive. The orders were made with a lack evidence, reasons or precedent. A 30% reduction in the rent has been ordered even though the house was habitable in all rooms and the tenant continued to use the kitchen, two bathrooms, the living room, a sunroom, and three bedrooms. The tenant did not claim or provide evidence that the house was uninhabitable. Ground 3: relevance of market rent – failure to have regard to material evidence 1. The rent reductions show a lack of understanding and consideration of the significantly lower than market rent already paid by the tenant. The Tribunal did not have regard to the fact that the tenant was paying a rent commensurate with the condition of the house. The Tribunal did not refer to evidence or provide reasons for its calculations, including documentary evidence of government statistics and market rents provided by the respondent. The tenant was over-compensated by the orders made for the rent reduction. Ground 4: Impossible to undertake repairs due to weather 1. The rent reductions cover a period when it was physically impossible for the landlord to comply with its obligations of repair because of extraordinary weather. Ground 5: COVID – no evidence 1. The rent reduction covers a period when the tenant claimed to have COVID for more than two months and refused access for repairs, but no medical evidence was provided to support that claim. Decision against the weight of evidence 1. The landlord contended that the Tribunal should have given more weight to its evidence and less weight to the tenant's evidence. In summary, the evidence to which the landlord referred in support of that contention included: 1. The landlord provided a professionally prepared site plan of the outdoor studio and the house with relevant measurements. The area of repair was said by the landlord to be only one metre in length, which when compared to the overall size of the studio, was very small. In relation to the house, repairs were required to one room during 2021 and two repairs were made to the roof during 2022. The site plan depicts the overall size and configuration of the house. The orders do not reflect the minor scale of the loss of amenity. 2. A statutory declaration was provided by the builder and attested to the roof being in reasonably good repair, that the landlord always approved repairs, the extraordinary weather preventing further repairs and the tenant refusing access for those repairs to be undertaken. 3. Statistics from the Rental Bond Board showed actual prices for houses rented in the same suburb with a comparable number of bedrooms. The rent reduction did not reflect the substantial discount to the market rent that the tenant was already receiving. 4. The Tribunal did not give appropriate weight to the landlord's records of repairs, work orders or work paid for, including copies of invoices for repairs. 5. An email from the landlord's agent to the tenant offered to release the tenant from her lease obligations and vacate without penalty, due to repairs being delayed as a result of adverse weather. The tenant chose to stay in the house regardless, knowing that repairs were to be delayed. 6. After the landlord's inability to undertake repairs, the tenant waited another three months before giving notice to vacate and claiming excessive rent only two days before the end of the tenancy. 7. Excessive weight was given to the market value of the studio. The market rental for the house would be the same without the studio. 8. The photographs provided by the tenant were not identified by date, location or scale. The tenant did not provide evidence from a professionally qualified person in relation to the condition of the house or the repairs required. New evidence 1. The landlord also sought to adduce new evidence, namely: 1. Evidence from the builder who attended the premises "on multiple times" to give oral evidence; 2. Evidence of Bureau of Meteorology rain records between November 2021 and March 2022. Reply to Appeal 1. The tenant lodged a Reply to Appeal on 9 January 2023. The tenant contended that the Tribunal's findings were "reasonable and accepted" and supported by "substantial evidence." 2. The tenant accepted in the Reply to Appeal that leave to appeal was necessary and leave to appeal being granted was not opposed. Parties' submissions 1. The landlord lodged its evidence and written submissions on 8 February 2023. 2. The tenant lodged her evidence and written submissions on 27 February 2023. 3. Procedural directions made on 18 January 2023 directed the tenant's documents to be lodged on 22 February 2023. Despite some opposition made in the landlord's written submissions to the tenant relying on that material given its late lodgement, it was a short delay of three business days and there was no prejudice established by the landlord. We allowed the tenant to rely upon her evidence and submissions in the appeal. 4. No sound recording or transcript of the hearing was provided by either party. 5. Both parties delivered oral submissions at the hearing of the appeal. 6. We will deal below with the detail of the parties' evidence and their submissions in our consideration of the issues raised on the appeal. Statutory basis of an appeal 1. Section 80(2) of the NCAT Act provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel. The requirements for the granting of leave to appeal from a decision of the Consumer and Commercial Division is set out in cl 12(1) of Sch 4 of the NCAT Act. 2. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (Ryan v BKB), the Appeal Panel said at [10]: 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. Leave to appeal 1. As we have stated above, the landlord seeks leave to appeal and this was not opposed by the tenant in her Notice of Reply. Irrespective of the tenant's position, we are required to satisfy ourselves that the appellant's grounds for seeking leave to appeal meet the statutory requirements in s 80(2) and cl 12(1) of Sch 4 of the NCAT Act. 2. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act, 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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. 1. Even if an appellant from a decision in the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." Questions of law 1. Although the landlord framed its appeal as seeking leave to appeal in respect of all grounds and did not characterise any grounds of appeal as involving questions of law, we will first consider whether any of the grounds might raise a question of law. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exclusive list of questions of law, including: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. A question of law will also arise if it is contended that there was a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]–[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)]. 2. If the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 at [63]. 3. A failure to deal with evidence may also in the appropriate circumstances raise a question of law. This may be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 at [28]; Croghan v Rees [2021] NSWCATAP 328 (Croghan) at [40]. 4. Where the appellant is self-represented (or not represented by a legal practitioner), it is appropriate for the Appeal Panel to review the grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13]. Where a party or both parties are legally represented, there is an expectation that they will identify any questions of law (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98) but otherwise the Appeal Panel should assist by identifying any questions of law having regard to the Notice of Appeal and the parties' submissions: ZEJ v ZEL [2018] NSWCATAP 252 at [8]-[11]. 5. Also, the statutory provisions that apply in the Tribunal includes 38(4) of the NCAT Act, which provides: The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. In having regard to s 38(4), the Appeal Panel in Newport v Pittman [2022] NSWCATAP 150 (Newport) said at [15] that "… it would deprive the appellant of procedural fairness if it did not recognise that it had articulated a question of law, albeit orally, namely that there was an absence of reasons to support the orders under appeal. A failure to forward a party procedural fairness will in itself constitute an error of law: see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [8]. Consideration Ground 1: Studio – lack of reasons; evidence Ground 2: House - lack of reasons; no evidence 1. Grounds 1 and 2 as we have described them above, essentially raise the same issues of a lack of reasons and no evidence in support of the Tribunal's findings. We have, for convenience, dealt with them together. 2. Ground 1 contended that the Tribunal made the orders for rent reduction in respect of the outdoor studio "with no supporting factors or evidence and failed to "make clear" or having "explained the calculation" by which rent reduction was determined. 3. Similarly, ground 2 in respect of the house, contended that the "orders were also made on lack of evidence, reason or precedent" and "no evidence" that the relatively large house, was "uninhabitable". Relevant principles - lack of reasons 1. At [21], the Appeal Panel in Newport said: A Tribunal must state clearly the reasons relied upon to justify its findings. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46], Basten JA said that a "pragmatic and functional approach" is to be applied in determining whether the obligation to give reasons has been satisfied. At [48] His Honour stated that the function of the appellate court is "to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power." 1. In NSW Land and Housing Commission v Orr [2019] NSWCA 231 (Orr), Bell P, (Ward JA at [109] agreeing) discussed the "relevant principles" in relation to the provision of reasons at [65]-[77] (from which we have extracted the following): 65. One may begin with the observation that the quality of a court or tribunal's reasons can vary immensely, of course, depending upon a range of considerations including the experience and skill of a judicial officer or tribunal member, the complexity of the subject matter, the quality of the submissions made before the court or tribunal, the availability of transcript, the urgency of the matter and the time the judicial officer or tribunal member has to compose his or her reasons. … 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). … 68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). … 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. 70. As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72. Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. … 74. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." … 1. These principles were summarised and applied by the Appeal Panel in Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 at [20]-[23] and Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58]. 2. In summary, the reasons to be given by the Tribunal should make the basis for the decision apparent. The features that are required for reasons to be adequate are set out in s 62(3) of the NCAT Act referred to above in Orr. Were the Tribunal's reasons adequate? 1. We have set out the Tribunal's reasons for reducing the rent at [10] above. As we have stated above that part of the Tribunal's reasons followed its consideration of the evidence at [7] (in relation to the studio) and [8]-[18] (in relation the house). In our view, the approach taken by the Tribunal was to allow a notional amount for the rent reduction without reference to the specific type of calculations relied upon in the Notice of Appeal and the landlord's submissions on appeal. 2. It is correct that there was no precise methodology applied by the Tribunal to find the amounts of rent to be reduced. Applying an exact mathematical calculation may not always be appropriate or possible. The amount claimed by the tenant was clearly regarded by the Tribunal as excessive. Yet the landlord did not conduct its case below on the basis that the calculations now relied upon in its Notice of Appeal were relevant in any respect. That is because, as observed by the Tribunal at [15], the appellant ran a case that no reduction of any amount should allowed. 3. The landlord's agent confirmed in oral submissions at the hearing of the appeal that there was no percentage loss of any areas identified by it at the hearing below as being unusable. That was not how the landlord's case was put on appeal. It was in effect a new case that was not put below. There was no calculation provided to the Tribunal of the area of affected parts of the studio or house. There was a site plan in the landlord's evidence lodged on 8 February 2022 (Item 15 at page 17). It was common ground (by reference to that site plan and other evidence) that there were affected areas of the premises. The Tribunal regarded the absence of proper repairs as causing "a significant reduction in amenity": [19] (our emphasis). The rental reduction was to reflect that loss, which was unquantified by any methodology offered by the landlord. 4. Doing its best to allow some reduction of rent by reference to the evidence considered by the Tribunal in relation to water ingress and the presence of mould in the premises and having rejected the amount of the reduction claimed by the tenant as not having been established, the landlord offered no alternative case or any means of quantifying that reduction in the event any reduction was allowed. The case advanced by the landlord was, as we discuss further below, solely based on the proposition that the rent payable under the RTA was already discounted from comparable market rents for such premises in that particular location in the suburb of Mosman, and in those circumstances, there should be no further reduction of rent. 5. The Tribunal rejected the landlord's contention and did its best on the evidence before it and having regard to the competing contentions of the parties, to award an amount to reflect its finding that there was a "significant loss of amenity." 6. In Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (Amann) Mason CJ and Dawson J held at 83 (Toohey J at 134 and Gaudron J at 153 making similar observations): "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann (1971) 124 CLR 303, Menzies J went so far as to say that the "assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation": at 308. Where precise evidence is not available the court must do the best it can. And uncertainty … is not a reason for a court refusing to assess damages." (citations omitted) 1. In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 (Placer) at [38], Hayne J said (with Gleeson CJ, McHugh and Kirby JJ at [6] agreeing): "[38] It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind. …" (citations omitted) 1. We are satisfied, having regard to the principles referred to above, that the amounts for the rental reduction allowed by the Tribunal were not, as put in oral submissions on behalf of the landlord, "plucked out of the sky." The Tribunal's reasons at [19] are sufficient to show that some reduction was warranted and the amount allowed was necessarily a notional amount where the case put by the parties on the evidence before the Tribunal did not permit a more detailed or mathematical approach in quantifying the reduction of the tenant's "significant loss of amenity". 2. In McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6 (McKerlie v Leeser), the Tribunal held at [124]-[125]; 124. Even if a tenant is not entitled to a rent reduction under s 44 (1) (b) of the RT Act, the Tribunal can still award compensation under s 187 of the RT Act for breach of the obligation under ss 63 and 65 of the RT Act to keep premises in a reasonable state of repair, by reason of the loss of use and amenity of the premises caused by the breach. 125. In assessing an appropriate amount of compensation, the Tribunal can consider the rent payable for the premises as a consideration in formulating appropriate compensation for loss of use and amenity caused by the breach (see, for example, Tuckwell v Ientile at [78]-[82]; Cowling v Tran; Tran v Cowling [2021] NSWCATCD 128 at [156]-[174]). 1. We are satisfied that the basis of the Tribunal's findings was sufficiently set out at [19] of its reasons. A reduction in loss of amenity was found. That finding was unchallenged on appeal. A reduction in the rent was justified. No submission was made that the Tribunal should assess the amount of the reduction in the way now contended by the landlord on the appeal. The Tribunal exercised its discretion, as it was obliged to do, to find some amount for the reduction of rent. The landlord described the decision and the amount allowed as unreasonable, unjust and displaying a lack of fairness. However, in challenging a decision on appeal that was founded on the exercise of a discretion as in this case, the test we must apply is that prescribed by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504-505 (per Dixon, Evatt and McTiernan JJ): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. We find that in all the circumstances and based on the matters discussed above, the Tribunal's decision displayed an adequacy of reasons in finding that notional amounts should be allowed for some reduction of rent sought by the tenant, across the periods relating to the loss of amenity in the studio and in the later period relating to the house. Accordingly, there was no error of law established in this part of the grounds of appeal in grounds 1 and 2. For the same reasons, in so far as leave was sought, we would refuse leave to appeal. "No evidence" contention 1. To contend that there was some evidence capable of supporting a finding, it is necessary that there be a rational connection between particular evidence and a finding of fact: BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35] – [43], Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [300] 2. The "no evidence" submission is not founded on a contention that there was no evidence of water ingress or mould in the premises. The Tribunal made a finding that the studio, described as an "important space for the family" for the reasons given at [7], was "not used" for a 6-month period: [7]. The landlord did not challenge in ground 1, the finding that the studio was subject to water ingress and mould and that the tenant ceased using the studio for about 6 months because of that loss of amenity. The "no evidence" point in relation to the studio has not been established. 3. In relation to the house in ground 2, the landlord accepted there was water ingress and repairs were required. The issue raised on the "no evidence" point in relation to ground 2 was that there was no claim and no evidence that "the house was uninhabitable." 4. The Tribunal referred to some of the rooms in the house suffering water ingress and resultant mould to support the finding that there was a loss of amenity. The Tribunal clearly accepted the tenant's evidence at [8]-[12] in its findings at [19]. Also, as observed at [13]-[14] of the Tribunal's reasons, there was ongoing leaking and repairs were required. The excuse for the landlord not undertaking the repairs is a different issue and we discuss that below. 5. The Tribunal found that the landlord failed to comply with its obligations of repair under s 63 of the Act: [19]. That finding was not directly challenged on appeal. The obligation under s 63 of the Act is to keep and maintain residential premises in a reasonable state of repair having regard to the age of the premise, the life expectancy of the premises and rent payable. 6. The contention in ground 2 was that the house remained habitable. That accords with the Tribunal's findings. The Tribunal did not find, as submitted by the tenant on the appeal, that the leaks and mould in one part of the house caused "the whole room" to become "unusable" or that the entire house was uninhabitable. 7. A breach of the obligation in s 63 of the Act to maintain premises in a reasonable state of repair may amount to a withdrawal or reduction of services by the landlord by reason of the landlord's omission to comply with that obligation: Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 (Roberts) at [113]-[114]. 8. A finding that premises are not fit for habitation is not to be lightly made: Bannister v Cheung [2014] NSWCATCD 105 at [20]; Bhandari v Laming [2015] NSWCATAP 224 at [36]); McKerlie v Leeser at [102] 9. In Dimunova v Vega [2017] NSWCATAP 5 (Dimunova) at [31]-[32], the Appeal Panel said at [31]: However, in our view, it was necessary for the Tribunal to consider whether the respondent had breached the obligations set out in s 63 to provide and maintain the residential premises in a reasonable state of repair. The Tribunal found that the burst water pipe did not occur through any act or omission of the respondent and therefore there was no breach of the residential tenancy agreement. In our view that analysis discloses an error of law. In our view, the obligation set out in s 63 is mandatory (subject to s 65(3)), and is not conditional upon the landlord having it within the landlord's own power the ability to take steps to provide and maintain the residential premises. The fact that another unit owner or the strata committee of the body corporate must take steps to fix the burst pipe does not excuse the landlord of his or her obligations under s 63. The only qualification to these statements is that the duty set out in s 63 is, in our view, modified by s 65(3) which provides that the Tribunal must not determine that a landlord has breached the obligation (that is the obligation which, by virtue of s 65(2), refers back to s 63(1)), unless the Tribunal is satisfied of two matters. The first matter is that the landlord had notice of the need for repair or ought reasonably to have known of the need for repair. The second matter is that the landlord failed to act with reasonable diligence to have the repair carried out (s 63(3)(b)). (our emphasis) 1. We deal with the second of the qualifications (italicised) referred to above in Dimunova later in our reasons. 2. The "no evidence" point raised in ground 2 was that there was no claim made and evidence that the house was "uninhabitable". The Tribunal did not make any finding that the house was uninhabitable. It did not appear to be in dispute before the Tribunal that the tenant continued to use the areas identified in ground 2, including the kitchen, two bathrooms, a sunroom and three bedrooms. The critical finding made by the Tribunal, not challenged on appeal, was that "the tenant was entitled to live in a house with her family without concern of regular leaks and the resultant mould which I accept she had to spend many, many hours cleaning just to provide a clean environment for her children": [19]. Primarily, it was that evidence and finding that supported the Tribunal in concluding that there had been a "significant reduction in amenity" and the consequential order for a reduction of rent. 3. We reject the landlord's contentions raised in grounds 1 and 2 in relation to the "no evidence" point. For the same reasons, in so far as leave was sought, we would refuse leave to appeal. Failure to have regard to "precedent" 1. The landlord contended (specifically in ground 2 but we take it as equally applying to the contentions in ground 1) that the Tribunal failed to apply or have regard to "precedent" in making its findings of rent reduction. We have construed that contention as raising a question of law as to whether the Tribunal applied the wrong principle and failed to direct itself to the right question. For the reasons that follow, we do not accept that this part of the landlord's contentions raised in grounds 1 and 2 of the appeal have been established. 2. The Tribunal is not bound by the doctrine of precedent: Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 (ILGA). The Appeal Panel in ILGA stated at [51]: The Tribunal is not bound by the doctrine of precedent to follow earlier decisions. However, in the context of the legislation governing one of the predecessor Tribunal's to NCAT – the Administrative Decisions Tribunal – it was said that the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong: Rittau v Commissioner of Police [2000] NSWADT 186 at [60]. We agree, however no such qualification has been expressed in relation to first instance decisions by the Tribunal Members other than the President or Deputy President. It follows that the Tribunal did not make a legal error by failing to follow the decision in MJ Trading v Independent Liquor and Gaming Authority [2018] NSWCATD 260." 1. The "precedent" the landlord was referring to is Hayes v Williamson [2015] NSWCATAP 268 (Hayes). Hayes was constituted by a Deputy President. 2. Hayes was not relied upon or referred to by the landlord (or tenant) in the proceedings before the Tribunal. The Tribunal made no reference to Hayes, being the point of the landlord's submission, effectively contending that the Tribunal of its own accord should have applied the approach in Hayes. However, as we have stated above, the landlord had opposed any rent reduction and offered no method of calculating or quantifying any loss of amenity that may be found by the Tribunal. 3. At the hearing of the appeal the landlord provided a spreadsheet providing a "House compensation calculation based on Hayes v Williamson." The percentage figures referrable to the various rooms derived from the overall internal area of the house and studio, was never put to the Tribunal as a means of quantifying any loss of amenity. 4. A party on an appeal, as we have referred above, is not permitted a rehearing or an opportunity to run its case again on grounds not advanced in the proceedings under appeal. The landlord does not explain why the Tribunal was obliged to rely on Hayes as a matter of precedent, or that the Tribunal applied the wrong principle or failed to direct itself to the right question, by not adopting the methodology under consideration in Hayes. The Appeal Panel decided Hayes on the basis of an agreed methodology adopted by the parties before the Tribunal and Hayes is clearly distinguishable from the facts of the present proceedings. Hayes is distinguishable 1. In Hayes, there was a calculable loss that concerned only one bedroom of the property that was – it was agreed - uninhabitable. In the decision there under appeal, both parties had accepted a reduction of rent was warranted and they were $140 apart on the amount of the weekly reduction that was appropriate. 2. The landlord provided and relied upon a mathematical calculation. Both parties adopted that methodology but differed in its application, causing the difference between them. The method agreed by the parties was to compare the floor space occupied by the affected bedroom and effectively double that percentage to arrive at the loss of amenity by reference to the rent payable. 3. The Appeal Panel rejected the amount awarded by the Tribunal because the parties had applied the wrong percentage referrable to the floor space of the total enclosed living area of the property. The Appeal Panel adopted the same methodology and took into account the error in the calculation to arrive at a different percentage. The appellant in Hayes did not dispute the figure derived by the Appeal Panel at the hearing in Hayes. 4. Hayes does not stand for the proposition that there is any fixed approach in determining a rent reduction by reason of a loss of amenity. The Appeal Panel did not require a prescribed approach and made the adjustment it made as "fair and appropriate": [21]. 5. In Hayes, the loss of amenity was isolated to one bedroom. The case before the Tribunal on this appeal was far more variable because of the nature of the leaks over different parts of the premises over a long period of time, both before and after some repairs had been performed. Therefore, the loss of amenity was in respect of different parts of the premises at different times. In our view, a broad-brush approach was permissible in the circumstances. Mathematical precision was illusory or at best complex and it was never contended by the landlord as an approach to be taken in the proceedings below. 6. We reject the landlord's contentions raised in grounds 1 and 2 in relation to the "precedent" issue. For the same reasons, in so far as leave was sought, we would refuse leave to appeal. Ground 3: relevance of market rent – failure to have regard to material evidence 1. Ground 3 contends that the rent reduction ordered by the Tribunal "shows a lack of understanding of, and consideration for, the significantly lower than market rent level paid by the tenant during the tenancy." 2. The contention by the landlord in ground 3 also raises the question of law as to whether the Tribunal applied the wrong principle and failed to direct itself to the right question. 3. We have taken the contention to be in relation to the period only covering the second RTA which reflected a reduction in rent from the first RTA (including the holding over). The first RTA was presumably at a market rent to reflect the condition and age of the premises, and that is what the parties had agreed for the amount of rent before the subsequent reduction. 4. If however the landlord is contending that the rent payable under the first RTA and the holding over was below market rent for a property of this condition and age or that it was not obliged to undertake repairs by reason of those matters, either promptly or at all, we would reject that submission. The tenant did not take on a tenancy of premises that were already leaking or suffering from mould infestation. We find, if necessary, that it was open to the Tribunal to provide the rent reduction for loss of amenity from the agreed rent of $850 that was caused by the studio becoming affected by water and unused from 16 July 2021. 5. We do not accept the landlord's contention in ground 3 in relation to the house. The Tribunal clearly had regard to the significantly lower than market rent level paid by the tenant under the second RTA during the tenancy. In doing so, the Tribunal did not allow the tenant's claim to the extent she sought a far greater rent reduction. 6. The age and condition of the house is a matter relevant to the landlord's obligation under s 63 of the Act but it does not prohibit a tenant claiming a reduction in rent caused by factors that might relate to the age and condition of the premises and which also create an unacceptable loss of amenity. The first RTA continued for the period when water was reported in the house on 26 November 2021. That issue was unresolved until the end of the tenancy. 7. The relevant legal principles were summarised in Tuckwell v Ientile [2022] NSWCATCD 124 at [63]-[71]: Under s 44 (1) (b) of the RT Act, the Tribunal can award compensation by way of a rent reduction if it is satisfied that the rent is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. An application under s 44 (1) (b) must be brought during the tenancy rather than after the tenancy has ended. Any rent reduction cannot be for a total period of more than 12 months. A "reduction" or "withdrawal" of "goods, services or facilities" includes a failure by a landlord to conduct repairs during the course of the tenancy in breach of ss 63 and 65 of the RT Act (Roberts v Aboriginal Housing Office [2017] NSWCATAP 9). However, the "reduction" or "withdrawal" must involve items that fell into disrepair and were not repaired during the course of the tenancy, not items that remained in the same condition (or not provided) at the beginning of the tenancy (Pan v Malveholm [2021] NSWCATAP 101). If goods, services, or facilities were not present at the commencement of the tenancy, then the potential applicable causes of action arise under ss 52; 63; 65, 187 and 190 of the RT Act. Section 52 involves whether the premises are reasonably fit for habitation at the commencement of the tenancy. Sections 63 and 65 involve whether the landlord has kept the premises in a reasonable state of repair. Sections 187 and 190 are remedial provisions that allow orders for damages and compensation (among other remedies). However, the limitation period for Tribunal proceedings under ss 187 and 190 of the RT Act is different to s 44 (1) (b) of the RT Act. By reasons of Regulation 39 (9) of the RT Regulation the limitation period is 3 months from becoming aware of the breach. The Tribunal can extend the limitation period under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), applying the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]… The landlord has an obligation under s 63 (1) of the RT Act to provide and maintain premises in a reasonable state of repair having regard to the age of, rent payable for, and prospective life of the premises. The obligation applies even if a tenant had notice of the state of disrepair before entering into occupation of the premises (s 63 (2) of the RT Act). By reason of s 65 (3) (a) and (b) of the RT Act, the landlord has not breached its obligation under s 63 (1) of the RT Act unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed. The principles applicable to whether or not there has been a breach of s 63 (1) have been considered by the Appeal Panel on many occasions, including Murarer v Andresson [2016] NSWCATAP 15 at [11]-[16] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [115]-[121]). The test is objective and once the landlord knew or should reasonably have known of the need to repair the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers. 1. In respect of the matters that may be considered by the Tribunal when assessing whether rent is excessive under s 44 (1) of the Act, s 44 (5) states: (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive— (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). 1. The matters identified in s 44 (5) of the Act are wide, and discretionary, with the legislature identifying that the Tribunal "may" have regard to those matters. The breadth of the provision and the Tribunal's discretion is emphasised by the legislature adopting the phrase to "any other matter it considers relevant…" in s 44 (5) (h). 2. In Roberts, the Appeal Panel stated at [124]: "124 As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant." 1. In Hu v Roggeveen [2022] NSWCATAP 295 ('Hu v Roggeveen'), the Appeal Panel stated at [59] that "The focus of the assessment of the appropriate level of rent reduction is the rental value of the premises after the reduction or withdrawal of the services or facilities" and distinguished between a rent reduction under s 44 (1) (b) and damages for non-economic loss due to a landlord failing to keep premises in a reasonable state of repair, failing to provide quiet enjoyment where part of methodology of assessment is loss of amenity. 2. However, the Appeal Panel in Hu v Roggeveen did not state that loss of amenity could not be considered in determining whether a rent reduction was appropriate, or the amount of the rent reduction. This issue (and the issue of 'double compensation' where claims are brought for a rent reduction under s 44 (1) (b) and damages under ss 187 and 190 of the Act in the same proceedings) was referred to in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46]: Thirdly, it is of course possible that conduct of a landlord may constitute a breach of the tenant's right to quiet enjoyment and a reduction or withdrawal of facilities. However, in the present case, where the only loss is non-economic loss, such as inconvenience or loss of amenity, it would be inappropriate to award damages by way of compensation and provide a reduction of rent. [21] Accordingly, had there been a legal error in failing to provide compensation for breach of quiet enjoyment with respect to the deterioration of the lawn, no further relief would have been appropriate and, accordingly, as a discretionary matter, relief by way of judicial review would have been refused. 1. Ultimately, what the Tribunal is determining is whether rent is excessive during the relevant period by reason of a withdrawal or reduction in goods, services or facilities by the landlord. That issue is assessed objectively, not merely on the basis of subjective assertions of the tenant and the landlord that the rent is, or is not, excessive. If the breach arises from a landlord failing to keep the residential premises in a reasonable state of repair constituting a withdrawal or reduction in facilities, the loss of amenity caused by the breach is a relevant matter to be taken into account. 2. The loss of amenity will depend upon the particular facts and circumstances of the case in the context of determining whether the residential premises with reduced amenity correlates into a finding that rent is excessive (and the amount by which rent is excessive). There is no simple mathematical formula that applies to every case. 3. It appears to us that the issue primarily raised by ground 3 must relate to the period of the second RTA where the tenant was occupying the premises under a below market rent or at least a reduction of the previously agreed rent under the first RTA. 4. The Tribunal's relevant finding in this respect was at [5]: The rent had been reduced during the tenancy for reasons of the COVID pandemic and also in February 2022 due to a request from the tenant when her family arrangements had changed, in particular her husband was hospitalised." (also at [17]). 1. The second RTA was apparently entered into on that basis at the reduced rent of $750 per week and for only a 6-month period. Presumably, it was a short-term arrangement to reflect those short-term circumstances. The evidence is unclear but the landlord did not deny, as far as we are aware from the evidence before us, that finding by the Tribunal (noting as we have, that there is no transcript of sound recording of the hearing). The only challenge made by the landlord to the findings with respect to COVID concerned a different matter, namely that the refusal to allow the builder to effect repairs because the tenant told the builder she (and possibly others in the family) had COVID. 2. The rent reduction was agreed on 23 February 2022 (when the second RTA was signed) and took effect from the commencement date of the second RTA which was 4 March 2022. The first report by the tenant of water ingress in the house was on 26 November 2021: [18] The landlord contended before the Tribunal that the first report of mould was not until March 2022: [14]. Based on those two matters which are the source of the tenant's complaints in these proceedings, neither seem to be causally linked in any temporal sense to the reduction in rent being agreed on 26 February 2022. In our view, it was open on the evidence for the Tribunal to find that the reduction in rent was for reasons other than the leaking and mould in the house. 3. The Tribunal was aware that the rent had already been reduced with effect from 4 March 2022 to $750. There is no reason to infer that the Tribunal did not take that into account in the amount of the reduction awarded for the period from 26 November 2021 up to and after 4 March 2022, to the date that the tenant vacated the premises in July 2022. In any event, based on the findings referred to above, the rent reduction was found to be unrelated to the leaks and mould and a further reduction in rent was warranted. 4. Ground 3 largely also repeats the contentions that we have considered above in relation to the Tribunal providing "no evidence or reason for the calculation" (our emphasis), including "the documentary evidence of NSW statistics and market rents …". We need not repeat our consideration of those contentions in ground 3 as we have dealt with them above and rejected them. As we have discussed, the Tribunal did not undertake a "calculation." No method of calculation was relied upon by the parties; instead, the Tribunal approached the reduction of rent in a way that was open to it on the evidence and doing its best by applying a notional figure. 5. We reject ground 3 of the grounds of appeal. For the same reasons, in so far as leave was sought, we would refuse leave to appeal. Leave to appeal 1. The remaining grounds (grounds 4 and 5) raised in Part 6.B(i) of the Notice of Appeal and the contentions that the Tribunal's decision was against the weight of the evidence raised in Part 6.B(ii), each require leave to appeal. There is no question of law raised by them. There is however considerable overlap between the issues discussed above in relation to the questions of law arising on the appeal (particularly in relation to the "no evidence" contentions) and the issues that require leave to appeal. 2. For the reasons that follow, we are satisfied on the evidence that is available, that the Tribunal gave due regard to the assessment of the evidence before it, in terms of its weight and probative value, and that the Tribunal's reasons logically followed from the findings it made. 3. We have not been assisted in dealing with this aspect of the appellant's contentions seeking leave because the appellant did not comply with the procedural directions made on 18 January 2023 in Order 2(d), that required: [By 8 February 2023]: If oral reasons were given and/or what happened at the hearing at first instance, is being relied on by the appellant in the appeal, a typed transcript of the relevant part of the hearing, together with the sound recording of the entire hearing. 1. As the Appeal Panel stated in Watson v Chen [2022] NSWCATAP 44 (Watson) at [27], compliance by the parties with procedural directions made by the Tribunal is "mandatory, not voluntary…". This is reiterated in the NCAT's Guideline 1 "Internal Appeals" at cl 60 that states: 60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon in order to prepare the matter for hearing. 1. In Watson, the Appeal Panel emphasised that it was incumbent on an appellant who seeks to overturn the Tribunal's orders of proving that the decision was affected by some material error: [33]. 2. Compliance with mandatory procedural orders facilitates that appellate process and enables the Appeal Panel to have all relevant material before it when making its determination of an appeal. The consequence of the landlord not lodging the sound recording or a transcript of the hearing at first instance is that on the appeal, we may not be afforded the opportunity of being able to conclusively determine whether a finding by a Tribunal was not fair and equitable or against the weight of evidence, in which case the landlord may not be able to succeed in its challenge to those aspects of its appeal. 3. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]-[26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]-[27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]-[28]. Decision not fair and equitable Ground 4: Impossible to undertake repairs due to weather Ground 5: COVID – no evidence 1. Grounds 4 and 5 do not raise a question of law and require leave to appeal. The grounds are contained in the Notice of Appeal in support of the landlord's contention that the Tribunal's decision was "not fair and equitable." They are also raised in the Notice of Appeal as reasons that the Tribunal's decision was "against the weight of the evidence." Either way, the requirement for leave is invoked. 2. We will therefore deal with these grounds as raising the need for leave under both grounds raised in cl 12 of sch 4 of the NCAT Act. It is also convenient to consider these two grounds together as they effectively relate to the same issue, namely the question of whether and if so why, the landlord failed to undertake the necessary repairs to the premises. 3. For the reasons that follow, we are not satisfied that there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, but for the matters challenged in respect of the Tribunal's findings, so that there was a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act. 4. Ground 4 contends that "extraordinary weather" made it "physically impossible" for the landlord to comply with its obligations of repair under s 63 of the Act. The landlord's submission attached to the Notice of Appeal dated 8 February 2023 accepted that: The Member acknowledged the weather conditions and lack of global supply issues which the landlord encountered which made it physically impossible for the landlord to carry out repairs for a period of time … However, the Member ignores this fact when applying Section 63 of the Act. The Member does not consider, for example, that the landlord could not force a roofer to get on a roof to fix it when that would be against work health and safety law, and all safety procedures of the Australian Building Industry. 1. That submission is in part based on the following statement in the statutory declaration of the landlord's builder, Mr Claude Crespin, dated 12 October 2022: Due to the extraordinary amount of rain in Sydney from November 2021 to March 2022, we were called to fix two leaks for the main house, but at times we could not make those repairs straight away because it just didn't stop raining. We cannot make repairs until the rain stops. 1. The Tribunal had specific regard to that part of Mr Crespin's evidence at [13] and [16]. The Tribunal accepted there had been "extraordinary rain" in Sydney between November 2021 (when the tenant first raised her complaints in relation to the house ([18]) and March 2022. The Tribunal also made reference to the rain during the last 12 months: [11] and [16]. The submission that insufficient weight was given to Mr Crespin's evidence is not supported on the evidence the Tribunal referred to and the findings made by the Tribunal that accepted Mr Crispin's evidence. 2. However, there are at least two difficulties with Mr Crespin's evidence and the landlord's reliance on it to the extent that it was not determinative of the landlord being entirely relieved of its obligations under s 63 of the Act. 3. First, the builder was not made available for cross-examination and his evidence therefore could not be tested. No explanation was given to explain his unavailability before the Tribunal or on the appeal. The importance of Mr Crespin's evidence to the landlord's case is apparent from ground 4 of the appeal and the landlord's request to adduce "new evidence" by having the builder "give oral evidence as a witness" to the condition of the house and the extraordinary weather, and to explain his evidence "in person." 4. That application was not formally made at the hearing of the appeal. Nor was a remitter sought by an order to have that evidence referred as a separate matter to the Tribunal for further consideration. In any event, we would have refused either application. The time for making any application to adduce evidence from the builder was at the hearing before the Tribunal and not on the appeal. If that necessitated an application by the landlord to adjourn the hearing to enable that evidence to be called, then it was incumbent on the landlord to do so at the hearing before the Tribunal and not on appeal. If that was refused by the Tribunal, it was then open to the landlord to challenge that decision on appeal. 5. Also, if it was indirectly sought, we would not remit the matter for further consideration by the Tribunal in circumstances where the landlord gave no evidence and made no submission as to why the builder was unavailable to give oral evidence at the hearing. That may also have been a reason why no application to adjourn the hearing was made when it should have been, namely the reason(s) for the builder being unavailable may not supported an application for an adjournment. 6. Second, the Tribunal observed that the "each time a leak was reported the agent would arrange for a tradesperson to attend to undertake a repair" ([13]) and that the builder, given the rain events, "would make repairs as soon as they could": [16]. The Tribunal found that between November 2021 and March 2022, the builder attended the site on two occasions to undertake repairs in relation to water leaks but could not undertake the work due to rain: [16]. 7. The evidence in Mr Crispin's statutory declaration that "at times we could not make these repairs" because of the rain during entire period of November 2021 and March 2022, was not able to be tested in person and it was lacking many specific details to prove the matters about which he deposed. 8. The evidence of quotes in the form of Work Orders being raised and repairs undertaken, is provided in a "Work Order Summary" in respect of the premises for the period 21 November 2019 to 6 July 2022 (identified as Item 20 at p 35 of the landlord's documents lodged on 8 February 2023). For present purposes, we only deal with the roof and related repair work in respect of "leaks" referred to in the Work Order Summary. 9. There is also a Schedule of "Invoice Payments" (item 19 on page 33) in the same documents lodged by the landlord. 10. The Tribunal's factual findings regarding the attendances of Mr Crespin was open on the evidence contained in the statutory declaration of Mr Crespin and by reference to the two entries of 26 November 2021 and 15 December 2021 in the Work Order Summary. 11. There is scant detail in the Work Order Summary and the Schedule of Invoice Payments describing the type of repair work that was required and that could not be undertaken out. As far as we are aware, the actual Work Orders and invoices referred to in the Summary and Schedule were not in evidence before the Tribunal or in the documents lodged on the appeal. 12. Mr Crespin's statutory declaration also attached a list of "times we attended the house" during period 26 November 2021 and 14 July 2022 (Item 14 on page 11 of the tenant's bundle of documents). That "chronology" includes dates that quotations were approved by the agent on behalf of the landlord. 13. Mr Crespin's chronology records him attending and undertaking repairs on three (not two) occasions during the period after 21 November 2022 and the tenant vacating the premises in July 2022. The chronology also records that it was not until 12 April 2022 that the issue of access was impacted by the tenant's COVID isolation. 14. As we have stated, without the transcript or the sound recording we are unable to conclusively determine or reconcile some of the inconsistencies in the documentary evidence or how, if at all, the parties dealt with that evidence at the hearing. 15. If obtaining quotes for repair work was holding up repair work up, then it was always open to the landlord to seek quotes from other builders. The same applies if Mr Crespin was unable to schedule the work until later when it was possible for him to undertake it. This does not mean that it was impossible to undertake work in Sydney during that entire period but that Mr Crespin as the builder used by the landlord, was only able to undertake them "as soon as [he] could schedule them." No doubt the weather also impacted other builders and the price quoted for any repairs but there was no evidence of any attempt to seek alternative builders to provide quotations for repair or undertake the repair work when it became necessary and if Mr Crespin was unable to fir it into his schedule. 16. The main repair work when it was undertaken was after the tenant vacated. In effect, there was a period from November 2021 until July/August when necessary repairs were said to be impossible due to rain and related scheduling difficulties or prevented by the tenant. Even allowing for the period when access was refused due to the tenant having COVID, that is a period of 8 months when no substantive repairs of the type undertaken after the tenant vacated, were performed by the landlord. 17. Overall, the evidence does not convincingly show the impossibility of Mr Crespin (or another builder) being unable to undertake repairs throughout that entire period after 21 November 2021 or being refused access from all of March to July 2022. The proposition put by the landlord is inconsistent with the obvious desire on the part of the tenant to live in a home that was not affected by rain and mould and it is also somewhat coincidental perhaps, that the repairs were in fact undertaken almost immediately after the tenant had vacated the premises. 18. Mr Crespin in his chronology referred to one occasion on 12 April 2022 that he was turned away by the tenant due to COVID. An email from the tenant dated 21 April 2022 to Ms Ardern (page 89 of the tenant's documents lodged on 27 February 2022) accords with that, in which she stated: C4 [Mr Crespin's company] came last week to do some repairs but I had to send them away as we were both unwell with Covid. I have messaged them a couple of times to see when they wished to return but havent [sic] heard form [sic] them. Also there is a problem with the mains fuse box … We don't have light in the back bedroom, sunroom or bathroom. 1. The evidence in the Work Order Summary shows an "urgent" work order was issued on that same date for the "problem with switchboard for half the house." However, no new Work Order for roof related repairs was issued after that date. There was an existing quote approval that Mr Crespin said was given on 24 March 2022 and is referred to in the Work Order Summary of that same date to "investigate any leaks to house only, and quote to fix". However, having been turned away on 12 April 2022 (3 weeks later), there was no further work undertaken in relation that quote approval. On 13 July 2022, Mr Crespin's chronology records that the builder attended the premises when the tenant was not at home, presumably because she vacated the next day. By that time, Ms Arden had been aware for some time of the tenant's intention to vacate by 15 July 2022 (see email to the tenant dated 14 June 2022 at page 116 of the tenant's bundle of documents). 2. Further, the Tribunal rejected the contention by the landlord in relying on the builder's evidence that it was justified in responding to the problem of rain and no access due to COVID, by offering the tenant the option to break the second RTA without penalty, but the tenant chose not to accept that offer: [14] and [19]. 3. We are satisfied that the Tribunal had regard to the builder's evidence and largely accepted it. The Tribunal assessed that evidence and gave it the weight that was appropriate when the builder was not made available to be cross examined (for reasons unexplained) and where his evidence has been referred to by the landlord's submissions as establishing the "physical impossibility" of undertaking roofing repair work between November 2021 and March 2022. There was no convincing evidence (aside from the single incidence of COVID in April 2022) to explain the subsequent delays in having any repairs undertaken during the period from March 2022 to July 2022. 4. Ground 5 is also a "no evidence" point. The landlord contends that there was no "medical proof" that the tenant or family members had COVID over a two-month period (March and April 2022) as a reason for refusing the landlord's builder access to undertake repairs. 5. There was evidence given by the tenant, and accepted by the Tribunal, that the tenant (and perhaps other occupants of the premises) had COVID and there was nothing of which we have been made aware as to why that was so implausible that it was not open to the Tribunal to accept that evidence. 6. Further, it was the landlord's builder who corroborated that evidence. Mr Crespin stated, as we have discussed above, that he was refused access because of COVID and the tenant "didn't want strangers in the house." The Tribunal refers to the builder's evidence in this respect at [13]. The landlord (and builder) appears to have accepted this explanation at the relevant time. 7. We have understood the reference to "strangers" as being the need for isolation in a COVID affected premise and following the relevant health advise to refuse non-family members access to premises, except for the specific exemptions listed in cl 6(5) (which do not apply) and requiring that any exempt person entering the premises must wear personal protective equipment in cl 6(6) of the Public Health (COVID-19 Self-Isolation) Order 2022 (NSW) that was effective from 28 March 2022 to 22 April 2022 (which appears to cover the approximate period of the COVID issue). We observe that the subsequent COVID-19 Self-Isolation Order (No 2) referred to by the landlord on the appeal (but which did not commence until 31 May 2022), relevantly had identical provisions. 8. The ultimate issue for the Tribunal's consideration was whether there was a loss of amenity and part of its consideration of this issue was to consider why there was a loss of amenity. We are satisfied that the landlord's evidence did not sufficiently explain the 8-month period during which no or inadequate repairs were undertaken to prevent all of the causes of water ingress to the premises during that period. Accordingly, it was open to the Tribunal on the evidence before it, to find that the landlord had failed to comply with its obligations under s 63 of the Act and to make an excessive rent order under s 44(1)(b) of the Act for the loss of amenity found by the Tribunal. 9. We refuse the landlord leave to appeal in respect of grounds 4 and 5. Decision against the weight of evidence 1. Most of matters raised by the landlord to contend that Tribunal's decision was against the weight of evidence have been addressed above. 2. We have identified five issues relied upon in the Notice of Appeal that require our separate consideration in determining whether, either on their own or collectively, we should grant the landlord leave to appeal on the basis that the Tribunal's findings were against the weight of evidence. We will deal with each of them briefly as they are not the primary matters relied upon by the landlord in seeking leave to appeal. The main grounds on which leave is sought have been dealt with above in these reasons. 3. The five matters relied upon by the landlord in seeking leave to appeal that we have not already dealt with under this contention are now considered. The tenant's photographs were "NOT dated and mostly did NOT prove location or scale." 1. We reject that contention. 2. The tenant's evidence before the Tribunal lodged on 27 February at Tab 3(a) and on the appeal had a list of photographs described as "Photograph Index" with a date and description of every photo in the tenant's evidence. The tenant confirmed at the hearing of the appeal that the dates were derived from a date recorded on the back of each photograph. The landlord did not establish that any of the dates or descriptions were incorrect to cause any doubt about the accuracy of the tenant's "Photograph Index." The question of "scale" is not a valid objection to the photographic evidence, as this was not relevant to the purpose for which the tenant relied on that photographic evidence. The tenant "did NOT (sic) provide any evidence from any professionally qualified person as to the condition of the house or the repairs required." 1. This contention is irrelevant and is rejected. 2. It was not in dispute that the house was old and that repairs were required. The issue was that the tenant suffered a loss of amenity. There was evidence of water ingress and mould, both in the outside studio and the house, that required repairs for which the landlord was liable under s 63 of the Act and which were not undertaken. The Tribunal's "orders give excessive weight to the market value of the studio building." 1. We also reject that contention. 2. As we have referred above, the Tribunal had regard to the nature and purpose for which the studio was used by the tenant's family. The Tribunal found that the studio was advertised as "a large double studio for teenage retreat": [7]. The studio was described "as an important space for the family – with teenage children it was a place for them to socialise with their friends; have sleepovers, the space was large enough for the tenant to store possessions from their previous home; the children practised their instruments (including a piano) in the studios and it gave the family space": [7] 3. The findings by the Tribunal do not reflect a failure to give appropriate weight to the relevance of the studio for the tenant renting the premises or in finding a loss of amenity when it could not be used as an "attractive" and "functional" space, and that it was not used at all in the last six months of the tenancy. The orders gave no weight to the tenant continuing to live in the premises during an "impossible situation" due to the rain events, that she refused the offer to break the lease and then waited 3 months to give notice to vacate and she lodged her application 2 days after vacating. 1. We reject the relevance and basis of those contentions for the landlord's application for leave to appeal. 2. In the circumstances that we have referred to above and based on the Tribunal's findings, we are of the view that it was open to the Tribunal to conclude at [19] that it was not an answer to the loss of amenity of the premises for the landlord to submit that the tenant could have vacated without penalty. 3. The obligation of repair is on the landlord under s 63 under the Act. A failure to comply with those obligations is not alleviated by offering a release from the RTA and to allow the tenant to vacate without penalty. That would allow any landlord to avoid its obligations under the Act and force an RTA to a premature end, by reason of its own default. 4. Also, the timing of the tenant's actions of which the landlord complains is irrelevant to whether there was a loss of amenity. It was reasonably open to the tenant to infer from the landlord's offer that it did not propose undertaking the necessary repairs to remove that loss of amenity. This was an inference also open on the evidence that we have discussed above that shows the landlord undertook extensive repairs only after the tenant vacated. Presumably too, the tenant required time to arrange alternative accommodation and it is not for us to question when a tenant feels the time is right to lodge an application in the Tribunal for rent reduction if it has a legitimate cause of action, which the Tribunal found she did, even though the amount allowed for the reduction in rent was significantly less than the amount the tenant had claimed. 5. It is also possible to infer that the tenant had perhaps intended to lodge the Application while still in occupation under the second RTA but that it was not amended to reflect her circumstances after vacating. We mentioned above that the Application had included a claim for an order under s 65(1)(a) of the Act for the landlord to undertake repairs. Obviously, that was only an order that could be made while she was in occupation under the RTA. That claim was then not pursued at the hearing since the tenant had just vacated when the Application was lodged. The tenant "did not ask for repairs to be carried out immediately" after the tenant's period of isolation for COVID had ended. 1. We reject that contention. The onus was not on the tenant to ensure the landlord complied with its obligations under 63 of the Act. 2. The evidence in the Work Order Summary shows that the landlord was well aware of the ongoing leaks and the need to undertake adequate repairs to prevent water ingress and mould in the premises. Further, as we have referred above, the tenant's email dated 21 April 2022 refers to her having requested the builder to attend "a couple of times" after the period of COVID isolation had ended and that she had not heard from them. New evidence 1. As set out above, the landlord sought to adduce "new evidence" provided in its documents for the appeal lodged on 8 February 2023, and submitted in the Notice of Appeal: 1. "We wish the builder who attended the property on multiple times to give oral evidence …; 2. "We wish to give Australian Bureau of Meteorology ['Bureau'] evidence" of the weather (i.e., rain) records for Sydney City between November 2021 and March 2022. 1. The evidence from the builder was a further statutory declaration of Mr Crespin dated 8 February 2023. The meteorological "rain records" were provided in a document in a summary form that referenced (but did not attach) the Bureau's records. The person who prepared the document is not known. 2. Clause 12(1)(c) of sch 4 of the NCAT Act only permits new evidence on an appeal if it is both "significant" and if it has arisen after the time of the hearing before the Tribunal, in the sense that it was not reasonably available to the party seeking to rely upon it at that time. The meaning of "not reasonably available" is that the evidence could not have been reasonably "obtained" at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]-[24]. 3. The new evidence from Mr Crespin was to be relied upon as being "a witness of the condition of the house" and to "explain in person …why the roof/leaks cannot physically be repaired when it's raining ...." The rain records covered the relevant period in relation to the leaks to the house from November 2021 to March 2022. 4. We refuse the landlord's application to adduce the new evidence. 5. Mr Crespin's new evidence is a further statutory declaration that was not relied upon at the hearing. The landlord elected to rely on the evidence of Mr Crespin in his statutory declaration dated 12 October 2022 before the Tribunal. If that evidence was inadequate and the landlord now seeks to supplement it and adduce oral evidence from the builder, then it is an attempt to run a case with evidence that was reasonably available but which the landlord elected not to provide before the Tribunal. As we have discussed, an "appeal does not provide a losing party with the opportunity to run their case again …": Ryan v BKB at [10]. 6. We are not satisfied that the new evidence is "significant" in the sense that even if it had been adduced before the Tribunal, the outcome of the hearing would not have been any more favourable to the landlord. As we have referred to above, the Tribunal largely accepted Mr Crespin's evidence. Referring to Mr Crespin's statutory declaration of 12 October 2022, the Tribunal said: … I accept the builder's evidence that the main house was generally in good condition … [and] that due to the extraordinary amount of rain in Sydney from November 2021 March 2022 they were called to fix 2 leaks but at times could not make repairs immediately due to rain; but would make repairs as soon as they could. 1. Further, it is too late to now seek to adduce oral evidence from Mr Crespin. If it was significant to the landlord's case at the hearing, the landlord failed to secure the attendance of Mr Crispen to give oral evidence and to afford the tenant the opportunity of testing that evidence. 2. The tenant submitted that no explanation was offered to the Tribunal as to why Mr Crespin was not available to attend the hearing. No explanation was provided at the hearing of the appeal to explain why the builder was not available to give evidence at the hearing before the Tribunal. 3. No adjournment was sought by the landlord to be able to adduce oral evidence from Mr Crespin before the Tribunal or obtain a further statement from him. No reasons were given for not making that application. 4. The same considerations apply the summary of the Bureau's rain records. The Bureau's data was reasonable available to the landlord if it has sought to adduce that evidence at the hearing. 5. Also, as we have stated above, the Tribunal accepted that the period of November 2021 to March 2022 was a period of an "extraordinary amount of rain". We are not satisfied either that this evidence is "significant" in the sense that the outcome of the hearing would have been more favourable to the landlord if that evidence had been relied upon at the hearing. Quantum 1. The landlord provided a "spreadsheet" that claimed that the amount of $14,310.71 was the total amount of the reduction of rent allowed by reference to Orders and 1 and 2 made by the Tribunal. The spreadsheet also demonstrated that by reference to the Tribunal's findings at [19] of its reasons, the rent reduction should be $10,185.71. 2. As discussed previously, the Tribunal ordered the rent "not exceed $650 pw" from 16 July 2021 to 25 November 2021; and "not exceed" $500 pw from 26 November 2021 to 15 July 2022. 3. The landlord asserts that there is an error of law because orders 1 and 2 declaring the amount of rent under ss 44 (1) (b) and 44 (4) of the RT Act does not reflect the findings in paragraph [19] of the decision. 4. The relevant findings in paragraph [19] was that rent was to be reduced by $100 pw from 16 July 2021 to 25 November 2021; and $250 pw from 26 November 2021 to 15 July 2022 (the end of the tenancy). 5. The findings regarding the agreed amount of rent prior to the Tribunal determining a rent reduction was appropriate is set out at paragraph [5]. The rent was $875 pw from July 2021 to 3 March 2022; and from 4 March 2022 to 15 July 2022 the rent was $750 pw. 6. Applying the above factual findings, the declared amount of rent payable should have been: 1. $775 pw from 16 July 2021 to 25 November 2021. 2. $625 pw from 26 November 2021 to 3 March 2022. 3. $500 pw from 4 March 2022 to 15 July 2022. 1. On the basis of the findings made at paragraph [19] and if the tenant had paid the full rent at the amounts set out in paragraph [5], the amount or reimbursement would on our calculation be as follows: 1. $100 pw from 16 July 2021 to 25 November 2021 (132 days equating to 18.86 weeks)-$1,886. 2. $250 pw from 26 November 2021 to 15 July 2022 (231 days equating to 33 weeks)-$8,250. 3. Total: $10,136. 1. The landlord lodged an application for a stay of the Tribunal's orders. The stay was not granted because the landlord did not attend the hearing of the stay application. No amount for reimbursement has been paid by the landlord to the tenant. 2. It is unfortunate the landlord did not make an application to the Tribunal pursuant to the 'slip rule' under s 63 of the NCAT Act to amend the orders or the reasons to clarify the orders made. 3. If paragraph [19] contained a typographical error regarding the amounts of the rent reduction, and the orders identified the correct amount of the declared rent payable, then the applicable findings at paragraph [19] would on our calculation be as follows: 1. Rent reduction of $225 per week from 16 July 2021 to 25 November 2021. 2. Rent reduction of $375 per week from 26 November 2021 to 3 March 2022. 3. Rent reduction of $250 per week from 4 March 2022 to 15 July 2022. 1. If they were the factual findings and the tenant had paid all of the rent at the amounts set out in paragraph [5], then the amount of reimbursement would be as follows: 1. $225 per week from 16 July 2021 to 25 November 2021 (18.86 weeks)-$4,243.50 2. $375 per week from 26 November 2021 to 3 March 2022 (97 days equating to 13.86 weeks)-$5,197.50 3. $250 per week from 4 March 2022 to 15 July 2022 (133 days equating to 19 weeks)-$4,750 4. Total: $14,191 1. The difference between the two amounts is approximately $4,000. Unfortunately, from the written reasons of the Tribunal, we cannot discern whether there is a typographical error in the amounts set out in the orders that were made, or a typographical error in the amounts set out in paragraph [19] of the Tribunal's decision. There is a clear inconsistency between the orders and the reasons. 2. Under those circumstances, we do not regard it as an appropriate or a procedurally fair exercise of our powers under s 81 of the NCAT Act to make any orders setting aside or varying the orders of the Tribunal; or substituting our decision for the decision of the Tribunal. It is appropriate that the Member at first instance resolve that issue. 3. Regrettably, the matter will need to be remitted back to the Member at first instance to determine whether the orders 1 and 2 are to be varied to reflect the reasons in paragraph [19]; or the amounts identified in the reasons in paragraph [19] are to be varied to reflect orders 1 and 2. The scope of the remittal is limited to that issue. 4. Upon remittal, the Tribunal may also determine that it is appropriate the decision be without further oral hearing under s 50 (2) of the NCAT Act, subject to both parties being given an opportunity to make submissions on whether an oral hearing should be dispensed with (s 50 (3) of the NCAT Act). 5. Further, we strongly encourage the parties to have settlement discussions to attempt to resolve the amount of the reimbursement. A compromise may be appropriate, considering the small monetary amount in issue. However, whether the remitted proceedings resolve is a matter for the parties. 6. We note that in its orders the Tribunal did not quantify the amount of reimbursement. The Tribunal made an order (Order 3) that any amount paid in excess of the rent reduction orders was to be repaid to the tenant. There is nothing inconsistent with the provisions of s 44 (1) (b) and (4) of the RT Act in the Tribunal framing its orders that way. It could have, if it chose to do so, made a money order that a specific amount be reimbursed as an ancillary order under s 188 of the RT Act, but it was not obliged to make such an order. The benefits of ordering a specific amount is to be repaid are clarity and finality. Costs 1. Order 6(2) under the heading "Notes" in the procedural orders for the hearing of the appeal made by the Appeal Panel on 18 January 2023, required any party seeking to make an application for costs of the appeal to lodge and serve any submissions on costs "at the same time as their submissions in relation of the appeal." 2. Neither party provided submissions on costs and it is unclear to us whether a party seeks to make a costs application. 3. Unless a party files with the Appeal Panel and serves on the other party written notice that they are seeking to make a costs application within 14 days from the date of this decision, we do not propose to make any costs orders. We point out that because the amount claimed or in dispute in the appeal is less than $30,000, by reason of the operation of s 38A of the NCAT Rules and ss 60 (1) (2) and (3) of the NCAT Act, for any costs application to be successful, the party seeking costs would have to establish "special circumstances" sufficient for a costs order to be made. Neither party was legally represented in the appeal. 4. If a costs application is made, we will issue further procedural directions regarding the filing and serving of costs submission and documents to facilitate the disposition of the costs application. If no cost application is made, there will be no order as to the costs of the appeal. Orders 1. We make the following orders: 1. Appeal allowed, in part. 2. Matter remitted to the Tribunal Member at first instance to determine whether the amounts identified in Orders 1 and 2 are amended to reflect the amounts in paragraph [19] of the reasons dated 2 December 2022 in Matter RT 22/31478 or whether paragraph [19] of the reasons is amended to reflect the amounts identified in Orders 1 and 2. 3. Appeal otherwise dismissed. 4. Any party seeking to make a costs application is to inform the Appeal Panel and the other party in writing within 14 days of the date of this decision that a costs application is being made. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023