Appeal allowed: tenant’s compensation claim sent back after tribunal gave inadequate reasons (NCAT, 2026)

What happened

The tenant rented residential premises described as a separate studio in a house at Glen Alpine in south-western Sydney. The landlord said the tenancy was an oral one, but did not challenge the Tribunal's power to deal with it under the Residential Tenancies Act 2010 (NSW). The landlord later told the Tribunal under oath that the tenant had been a very good tenant for two years and had always paid rent on time, and that the reason he wanted the premises back was so his grandson could move in.

Three notices to end the tenancy were issued. The first, around October 2025, was said by the landlord to have been verbal; it was not disputed that it had been found invalid in other proceedings. The second was emailed on 5 December 2025 and required the tenant to give up possession by 5 March 2026. On 8 December 2025 the tenant applied to the Tribunal for an order that the second notice was retaliatory and of no effect under section 115 of the Act, and also claimed damages for breach of his right to quiet enjoyment under section 50. At an earlier hearing on 16 March 2026 the Tribunal declared that the 5 December notice had not been given in accordance with Part 5 of the Act, because the termination information statement referred to in the notice was not sent with it. A third notice was issued on or about 6 May 2026, after the main hearing.

On 24 April 2026 the Tribunal dismissed both parts of the tenant's application after a hearing, and issued written reasons the next day. Those reasons were short. They recorded that the landlord wanted his grandson to move in and had confirmed that under oath, that the tenant had not made out a sufficiently persuasive case that the notice was retaliatory, that the tenant had not made out a persuasive case that the landlord failed in his other duties, and that the tenant had not established an entitlement to compensation. The reasons did not set out the evidence behind those last two findings.

The tenant lodged a notice of appeal on 13 May 2026, four days after the 14-day period for residential matters had run out. He represented himself. The landlord attended and was represented by his daughter as his agent. Both sides also put forward large bundles of material, much of which had not been before the Tribunal at the first hearing.

What each side wanted

In his notice of appeal the tenant raised several grounds, including that the Tribunal had misapplied the law on compensation for loss of quiet enjoyment, had not afforded procedural fairness, and had made findings against the weight of the evidence. At the appeal hearing he confirmed he was no longer challenging the dismissal of his retaliatory-notice claim, because the 5 December notice had already been found invalid elsewhere, so the appeal was confined to his claim for non-economic damages under section 187 of the Act for breach of quiet enjoyment. He said the repeated eviction notices had affected his mental state and his quiet enjoyment of the premises, and he asked for extra time to lodge the appeal because his psychological condition made it hard to concentrate and deal with the various proceedings. The landlord submitted that the Tribunal's decision was correct and should stand, pointed to documents said to show inconsistencies and omissions in the tenant's case, accepted in oral submissions that the Tribunal's reasons on the compensation point were sparse but argued that the hearing itself had been procedurally fair and that reasons appeared in the transcript. The landlord opposed an extension of time, citing the long history of proceedings, the cost, the delay in getting possession and the fact that his grandson could not move in.

What the tribunal decided

The Appeal Panel made five orders. It extended the time for filing the notice of appeal to and including 13 May 2026. To the extent required, leave to appeal was granted. The appeal was allowed.

Order 1 of the Tribunal, dated 24 April 2026, was set aside to the extent that it dismissed the tenant's claim for non-economic damages under section 187 of the Residential Tenancies Act 2010 (NSW). That dismissed claim was remitted to the Tribunal for re-determination after hearing. Both parties had told the Panel that remittal was their preference if the appeal succeeded.

No money was ordered to be paid by either side. The Panel did not direct whether the rehearing must be before a different member, and did not limit what evidence the Tribunal may take into account, including any fresh evidence, when it decides the compensation question again.

Why the tribunal decided it that way

On the late filing, the Panel used its power under section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend time. It applied the considerations set out in an earlier Appeal Panel decision, Jackson v NSW Land and Housing Corporation: the length of the delay, the reason for it, whether the appeal has prospects of success, and any prejudice to the other side. The delay was only four days, the Panel accepted that the tenant has mental health issues including PTSD and that the landlord did not really dispute this, it was satisfied with his explanation, and although it accepted there was some prejudice to the landlord, it found the appeal had prospects of success.

The Panel allowed the appeal on one basis: the Tribunal had not given adequate reasons. Section 62(3) of the Civil and Administrative Tribunal Act says a written statement of reasons must set out the findings on material questions of fact and the evidence they were based on, the Tribunal's understanding of the law, and the reasoning process that led to its conclusions. Drawing on McNeill v Clarence Valley Council and the Court of Appeal's decision in NSW Land and Housing Corporation v Orr, the Panel noted that even where a party has not formally asked for written reasons, section 62(3) gives important guidance on the minimum characteristics reasons should have. Reasons do not have to be long or elaborate, but they do have to show the basis for the findings.

The Panel described much of the short reasons as "ipse dixit" statements, meaning findings or conclusions stated without any supporting evidence or reasoning. The two key paragraphs did not disclose the basis for the findings, or the reasoning process by which the member concluded that the tenant had not established either a breach of the landlord's duties or an entitlement to compensation. The Panel accepted that the transcript recorded some discussion of the evidence on the compensation claim, but that discussion had not found its way into the final reasons.

The Panel said it inclined to the view that inadequate reasons raise an error on a question of law, which carries an automatic right of appeal, but because that point is not settled by binding authority it also granted leave to appeal under section 80(2)(b). It did so on the basis that there had been a substantial miscarriage of justice because the decision was not fair and equitable, under clause 12(1)(a) of Schedule 4 of the Act. It held there was a possibility that a different result may have followed, noting that it did not have the whole transcript of the first hearing or the whole of the tenant's evidence, which is why it sent the claim back rather than deciding it itself.

What this means if you are in a similar position

If you are in a similar position, this decision shows how NCAT applies the rule that a tribunal's written reasons must show their working. Reasons do not need to be long, but they are expected to say what was found on the facts that mattered, point to the evidence behind those findings, state the law being applied, and explain the path from the evidence to the result. Where reasons simply assert that a party did not make out its case, an Appeal Panel may set that part of the decision aside and order the claim to be heard again, rather than deciding the claim itself. Note that an appeal succeeding on this ground does not mean the claim has been won: here the tenant's compensation claim goes back to the Tribunal still undecided.

The decision also shows that strict time limits apply to appeals, and that they can be extended. The period for an appeal in a residential tenancy matter was 14 days from receipt of the decision, and the four-day delay here needed a separate order before the appeal could proceed. The Panel looked at how long the delay was, the explanation for it, whether the appeal had any real prospects, and the effect of the delay on the other side. It also shows that material put together after the first hearing is not automatically part of an appeal; both sides filed documents that had not been before the Tribunal below.

For the underlying kind of dispute, a renter who says a landlord has interfered with their quiet enjoyment of the property is claiming under the Residential Tenancies Act, and compensation for distress of that kind has to be established with evidence. In practice most people in that position start by putting the complaint to the landlord or agent in writing, setting out each thing said to be a breach and the loss claimed, and only then lodge an application with the tribunal if it is not resolved.

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

Source: Warhurst v Fuentes [2026] NSWCATAP 349 (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.