Appeal allowed: tenant’s $13,400 claim for hotel and travel costs sent back for re-hearing (NCAT, 2026)

What happened

The tenant signed a written tenancy agreement for social housing premises in Redfern, Sydney on 6 January 2025. It was a six month fixed term at $89.60 a week, and she moved in on 11 January 2025. After the fixed term ended the tenancy continued as a periodic tenancy under section 18 of the Residential Tenancies Act 2010 (NSW). The landlord was the NSW Land and Housing Corporation.

The problems in dispute concerned cockroaches, electrical safety and mould. The tenant moved out on 1 June 2025 because of what she considered the unsatisfactory condition of the premises and stayed away until about 22 September 2025. She then went back, apart from about a week in October 2025 when she left again over a health issue she said came from mould. While she was away she paid for hotel and other accommodation, some travel costs for relocating, and boarding for her cats. Her total claimed expenses came to $13,438.96.

The decision records several things that were not in dispute. The landlord gave rent reductions over various periods, provided alternative accommodation at its own cost for parts of late August and September 2025, offered the tenant different premises on 13 October 2025 (which she rejected), and offered other premises on 22 October 2025 (which she accepted). The new tenancy started on 11 November 2025.

The tenant lodged three applications on 2 September 2025 and a fourth on 16 October 2025. They covered cockroaches, dampness and mould, reimbursement of accommodation fees and compensation, and a further claim about mould including about $1,000 for a week's accommodation in October 2025. All four were heard together and decided in one decision on 26 March 2026. That tribunal awarded $4,500 for non-economic loss (distress, anxiety and disappointment, as opposed to out-of-pocket money) for breach of her right to quiet enjoyment because of mould, and made no other order. It refused the accommodation costs on the basis that she had not mitigated her loss, meaning she had not taken reasonable steps to keep her loss down, because she had rejected two offers of social housing.

What each side wanted

On appeal the tenant did not challenge the $4,500 award. She asked for two further amounts: $12,841.24 in accommodation costs plus $597.72 in travel costs for the period from June 2025, and $5,000 for non-economic loss caused by the cockroach infestation. She argued the first tribunal never decided whether the landlord had breached section 52(1) of the Act (the duty to provide the premises in a reasonable state of cleanliness and fit to live in), asked itself the wrong questions about the repair duty in section 63(1), and made findings about her failure to mitigate with no evidence to support them. The landlord argued a finding under section 52 was unnecessary because the tenant had already been fully compensated for non-economic loss and anything more would be double compensation, that the correct repair test had been applied, and that the tribunal was right to find she failed to mitigate because the landlord had offered to relocate her permanently from 12 August 2025.

What the tribunal decided

The Appeal Panel allowed the appeal. It did not send the whole of the four proceedings back. Instead it remitted (sent back) only two specified claims to the Consumer and Commercial Division, to be heard and decided again by a differently constituted tribunal, on whatever evidence the parties file and serve under the directions for that hearing, including saying which existing evidence they rely on.

The claims remitted are: a claim for reimbursement of alternative accommodation costs of $12,841.24 and travel costs of $597.72 incurred between 1 June 2025 and 13 October 2025 inclusive, said to flow from a breach of section 52(1) and/or section 63(1) in relation to cockroaches, mould and electrical problems; and a claim for non-economic loss of $5,000 said to flow from a breach of section 52(1) and/or section 63(1) in relation to cockroaches.

The Panel also gave the parties liberty to apply within 30 days of the publication of the reasons for an order about the tenant's rent reduction claim under section 44(1)(b), because that claim had not yet been finally decided by the first tribunal. The $4,500 already awarded for breach of quiet enjoyment was not disturbed, as no appeal was brought against it.

Why the tribunal decided it that way

An appeal to the NCAT Appeal Panel from this division is available as of right only on a question of law; anything else needs permission. The Panel said a question of law arises where the tribunal fails to deal with a substantial claim, fails to ask itself the right question, or makes a finding of fact with no probative evidence (evidence that actually tends to prove the point). Because the tenant was self-represented, the Panel worked out for itself from her material whether a question of law was raised. It upheld all three grounds, so it did not need to deal with permission to appeal.

On the first ground, the Panel disagreed with the landlord's double compensation argument. The $4,500 was for non-economic loss from mould only, and said nothing about the money the tenant spent on accommodation, or about distress caused by the cockroaches. If the premises were found not to be fit to live in, that would be a strong basis for the accommodation claim. The tribunal was obliged to decide whether section 52(1) had been breached and what losses followed, and not doing so was an error of law.

On the repair duty in section 63(1), the first tribunal had rejected the claim because the landlord had made attempts to fix things and because it was not satisfied the landlord knew of a long-standing damp and moisture problem with any specificity. The Panel held these were not the correct questions. It also noted the tribunal had not asked whether the landlord ought reasonably to have known of the need for the repair, which is the test in section 65(3A). On the re-hearing, the tribunal will need to work out how much of any loss from a repair breach the $4,500 award has already covered.

On mitigation, the Panel found two problems. First, the earliest offer of alternative accommodation was 12 August 2025, so a failure to mitigate could not explain refusing the costs the tenant incurred from early June 2025, and the tribunal never addressed that part of the claim. Second, the only evidence of an offer on 12 August was an internal offer response form with the tenant's response section blank and unsigned, in contrast to the signed form for the October offer. The tenant said she asked to view the property and was refused. On that material the Panel could not see any probative evidence that she had rejected an August offer, so there was no evidence to support a finding that she failed to mitigate before 13 October 2025. The Panel sent the matter to a different member because of the adverse factual conclusions reached, and warned that the tribunal's monetary limit under section 187(4)(a) and regulation 40(b) will need to be considered, giving the example that an accommodation and travel award might be capped at $10,500 given the existing $4,500 award.

What this means if you are in a similar position

If you are in a similar position as a renter, this decision shows that the different duties a landlord owes are separate, and each one has to be dealt with on its own terms. Compensation for the upset caused by one problem does not answer a claim for money actually spent because the place was not fit to live in, and a finding about mould does not deal with a separate complaint about pests. It also shows the tribunal is expected to ask the question the section of the Act actually sets, not a different one: for repairs, whether the landlord knew or ought reasonably to have known of the need for the repair, rather than whether it made some attempt or knew of a long-standing issue.

The mitigation part of the decision shows how much the paperwork matters. A tenant who runs up costs is generally expected to take reasonable steps to limit them, but a finding that someone unreasonably knocked back an offer needs evidence that the offer was made and refused. Here a blank, unsigned offer form was held not to be evidence of a refusal, while a completed and signed form for a later offer was treated differently. It also shows that a failure to mitigate from a certain date cannot explain refusing costs that were incurred before anything was offered.

In this kind of dispute most people start by putting the problem to the landlord or agent in writing, setting out what is wrong, what they have spent and what they are asking for, and keeping copies of every notice, offer and reply. If that does not resolve it, the next step is usually an application to the tribunal, and if a decision appears to contain an error of law, an appeal.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and house rentals and bonds.

Source: Jacmon v NSW Land and Housing Corporation [2026] NSWCATAP 304 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.