Mould repair award of $10,635 set aside and sent back for a fresh hearing (NCAT, 2026)

What happened

The owner of lot 10 in a strata scheme at Auburn applied to NCAT in October 2024. He asked for orders that the common property ceiling be repaired under section 106 of the Strata Schemes Management Act 2015 (the duty on an owners corporation to repair and maintain common property) and for a compulsory strata manager to be appointed under section 237. The respondent was first named as the strata manager and was later changed to The Owners – Strata Plan No 6707, the owners corporation itself.

At a hearing on 6 January 2025 the Tribunal made orders by consent, that is, orders both sides agreed to. The owners corporation was to engage a recognised mould expert to investigate and report by 28 January 2025; the owner was to give the expert access to the whole unit on three days notice; and, under order 3, once the report arrived the owners corporation was, if the expert recommended it, to engage a licensed builder or renovator to remove the mould and rectify it in line with the report's recommendations within four weeks of receiving the report. The owners corporation was also to reimburse a fire door invoice within seven days and to repay $880 for electrical work and a replacement oyster light. The decision on the compulsory strata manager was put off, because the then strata manager's licence had been suspended and that suspension was itself under appeal.

In February 2025 the owner applied to renew the proceedings, saying the mould had not been dealt with. The Tribunal found the earliest inspection date was 23 or 24 January 2025, that the owner did not give the owners corporation's contractor access on 24 February 2025 and did not answer two further access requests, and that the mould expert, SESA, finally inspected on 29 April 2025. SESA's report of 29 May 2025 recorded significant mould contamination, said the unit was not fit for habitation by mould-sensitive people without comprehensive remediation, and set out a scope of works. That scope began by calling for a competent builder or building moisture specialist to assess water ingress in and around the dwelling. A contractor then unsuccessfully sought access on 16 July 2025.

On 3 October 2025 the Tribunal found orders 1 and 2 had been complied with, late, but that order 3 had been breached, and ordered the owners corporation to pay the owner $10,635 immediately: $8,975 to treat mould in the unit including the laundry and bedroom, $1,000 for the cost of obtaining the treatment quotation, and $660 for surface mould cleaning in the bathroom. It dismissed his claim for $13,341.60 in medical and ongoing psychological treatment costs and his claim for $39,514 in lost rent. The owners corporation appealed and the owner cross-appealed.

What each side wanted

The owners corporation argued the decision was not fair and equitable and was against the weight of evidence, because the finding that it had no intention of complying with order 3 did not match the documents or the oral evidence; it also argued the order let a lot owner carry out work on common property, and that the quotation and invoices relied on had no proper evidentiary basis. The owner argued the Tribunal was wrong to reject his claims for lost rent and for medical and psychological expenses, that the award of $10,635 was manifestly inadequate against what he put at $67,493.85 in proven losses, that he was not given a chance to clarify his evidence, and that other consequential losses should have been allowed. The owners corporation also asked for leave to be legally represented in the cross-appeal on terms that did not stop it seeking its costs of the cross-appeal, which the owner opposed.

What the tribunal decided

The Appeal Panel allowed the owners corporation's appeal, set aside the order of 3 October 2025, and remitted the proceedings to the Consumer and Commercial Division for hearing and redetermination by a differently constituted Tribunal, on such evidence as the parties file and serve under the directions that apply to that hearing. The effect is that the $10,635 order no longer stands and the renewal application is to be heard again.

The owner's cross-appeal was dismissed. Leave to appeal was refused on his rent loss and medical expenses grounds, and his remaining grounds were dismissed. The Tribunal's dismissal of his claims for $39,514 in lost rent and $13,341.60 in medical and psychological costs therefore stands undisturbed.

The owners corporation was granted leave to be represented by Liu & Woodland Law Firm in the cross-appeal, without any condition about costs of the cross-appeal. If it seeks costs of the appeal or cross-appeal, it must file and serve written submissions within 14 days of the orders, the owner may reply within a further 14 days, and the owners corporation may reply within 7 days after that. Submissions are limited to three pages, 12 point font and 2.54 cm margins. The Appeal Panel proposed to decide any costs application on the papers without a hearing under section 50(2) of the Civil and Administrative Tribunal Act 2013, unless a party objects and gives reasons.

Why the tribunal decided it that way

When a Tribunal order is not complied with, clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 lets the person who won the order renew the proceedings. On renewal the Tribunal 'may' make any other appropriate order it could have made originally, or may refuse to make one. The Appeal Panel stressed that the word 'may' makes this a discretion: even where the original order was not met, the Tribunal chooses between making a new order and making none, and it can look at the original orders, the circumstances of the non-compliance and all the relevant circumstances before and after the original decision.

The Appeal Panel agreed the owners corporation had missed the deadline. The SESA report arrived on 29 May 2025, so order 3 required a contractor to be engaged by 26 June 2025, and the contractor did not seek access until 16 July 2025. That lateness triggered the renewal power. But the Panel found the Tribunal's reasoning about what the owners corporation had done was against the weight of evidence, the test being that the evidence as a whole points so strongly the other way that no reasonable Tribunal member could reach that conclusion. Order 3 required rectification in accordance with the expert's recommendations, and SESA's own scope of works began by recommending a builder or moisture specialist to assess water ingress. Engaging a separate contractor to investigate the source of the water was therefore within order 3, not a departure from it, and the Tribunal was mistaken in treating it as a different scope of works. The finding that the owners corporation had 'no intention to comply' also ran against the active steps it had taken and statements by its lawyer at the hearing that it was willing to do the work.

Because the decision was an exercise of discretion, the Panel applied House v The King: a discretionary decision can be overturned where the decision maker acts on a wrong principle, mistakes the facts, or fails to take a material consideration into account. The Tribunal had mistaken the facts and left material matters out, and the error was central, because had those matters been weighed the Tribunal might have extended time for the work or made no order at all rather than awarding $8,975 for mould treatment. The matter went back to a different member because the original Tribunal had expressed a firm and critical view about how the parties ran the renewal.

On the cross-appeal, most grounds needed leave, which under clause 12 of Schedule 4 is available only if the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, was against the weight of evidence, or significant new evidence has arisen. The rent claim failed on proof: there was no evidence the unit had been let, or that a tenant left, and the owner had continued to live in it, so there was no actual loss to restore; a weekly ledger of $600 was of minimal probative value, and a rent claim must in any case be measured as net loss after expenses. The medical claim failed because the psychologist's letter said anxiety and depression were exacerbated by the behaviour of the strata manager, without saying how much or what behaviour, and no basis was shown for holding the owners corporation liable for its agent. The Panel also noted an annexure of medical invoices said to be attached was not there, and that quoted passages from an affidavit of a specialist were not before it. Finally, while section 38(5) of the Act requires the Tribunal to explain the process and give a reasonable opportunity to be heard, it does not require the Tribunal to point out weaknesses in a party's evidence or to advise a self-represented party on how to run the case.

What this means if you are in a similar position

If you are in a similar position in a strata repair dispute, this decision shows how consent orders are read and enforced. Orders made by agreement are read on their own words, and where an order says the work is to follow an expert's recommendations, the expert's report becomes part of what is required. Here an investigation of water ingress by a second contractor looked, at first instance, like a departure from the orders, but the expert's scope of works had expressly called for it. The decision also shows that missing a deadline opens the door to a renewal application without guaranteeing a money order at the end of it, because the Tribunal still has a choice about what order, if any, to make and will look at what the other side has actually been doing.

It also shows how loss is proved. A claim for lost rent is for money actually lost, measured as net loss after the expenses of letting, so a ledger of what rent might have been earned while the owner continued living in the property did not establish a loss. A claim for medical or psychological costs needs expert material that connects the condition to the breach by the party you are claiming against, and invoices that are actually in evidence. Where loss is said to flow from a strata manager's conduct, something has to show the owners corporation is answerable for it. The Tribunal is not required to warn a self-represented party that their evidence falls short, and evidence of a serious claim is expected in a sworn or declared form where directions have said so.

In this kind of dispute most people start by putting the problem to the owners corporation or its strata manager in writing, describing the defect, the common property involved and the repair sought, with photographs, reports and dates, before making an application to the Tribunal.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and strata and body corporate.

Source: The Owners – Strata Plan No 6707 v Gaters; Gaters v The Owners – Strata Plan No 6707 [2026] NSWCATAP 331 (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.