Public housing landlord ordered to pay $11,200 in costs after failing to hand over documents (NTCAT, 2026)

What happened

Two tenants rented public housing homes in a remote community. Their claims were that the landlord, the Chief Executive Officer (Housing), had breached its duty under section 48(1)(a) of the Residential Tenancies Act 1999 to ensure the premises were habitable, and, for one of the homes, its duty under section 49(1) to take reasonable steps to provide and maintain locks and security devices. That home was let for an extended period without a back door. Both tenants have since died and their claims were carried on by their estates, one through a court-appointed administrator.

The dispute ran for about ten years. It was heard by the Tribunal in 2019, then went to the Supreme Court of the Northern Territory, the Court of Appeal twice and the High Court of Australia, before being sent back ("remitted") to the Tribunal to work out whether there had been breaches, for how long, and what compensation should be paid under section 122 of the Act.

In that remitted decision, published in January 2026, the Tribunal upheld four of nine alleged breaches for one home and one of twelve for the other. It assessed compensation at $50,000 for the first tenant's estate and $6,000 for the second, then deducted amounts already paid under earlier decisions, leaving orders of $31,265 and $5,000.

This decision deals only with who pays the legal costs of that remitted hearing. Two things dominated it. First, the landlord tried to put in a large volume of documents through a declaration from one of its officers that it had never produced in the 2019 hearing, despite Tribunal orders in September and November 2016 to disclose all documents relevant to the issues in dispute, and despite an assurance at the time that a thorough search had been done. Those documents were ruled inadmissible, but arguing about them took up much of the first day of the two-day hearing. Second, the landlord sought to rely on a time limit defence under section 12 of the Limitation Act 1981 that its own counsel had told the Tribunal registry in February 2019 was no longer relied on.

What each side wanted

The estates asked for $135,385.22, being their solicitor and client costs since the matter was sent back by the Court of Appeal, and asked for those costs on an indemnity basis, meaning close to a full reimbursement rather than a capped or assessed amount. They argued the landlord had led the Tribunal into error in 2019, had withheld and then tried to spring documents on them, had tried to reopen points it had given up, had not engaged in genuine settlement talks, and had engaged in sharp practice contrary to the model litigant policy that applies to government parties. The landlord argued the Tribunal should make no costs order at all, relying on the presumption in section 131 of the Northern Territory Civil and Administrative Tribunal Act 2014 that parties bear their own costs; it also said the estates had not shown they were liable to pay their own lawyers, that complaints about the 2019 hearing belonged to the 2019 costs decision, and that its own conduct in the remitted hearing was neither improper nor unreasonable.

What the tribunal decided

The Tribunal ordered that the Chief Executive Officer (Housing) pay to the administrator of the first tenant's estate, on or before 8 June 2026, costs of $10,000, and pay to the second tenant's estate, on or before 8 June 2026, costs of $1,200.

That is $11,200 in total against a claim of $135,385.22. The Tribunal refused to award costs on an indemnity basis. It also found that nothing was payable under section 132(1A) of the Act, which covers Tribunal fees and disbursements, because the costs application was made by an Ordinary Application for which the Tribunal charges no fee and notice is given electronically.

Why the tribunal decided it that way

The Tribunal started from section 131 of the NTCAT Act, which says parties bear their own costs in Tribunal proceedings. A costs order is possible under section 132(1), but only after weighing the matters in section 132(2): the objectives of simplifying proceedings and keeping costs to a minimum, the need for fair proceedings in which parties are not disadvantaged by claims with little or no merit, whether the proceeding was dismissed, any matter in the Rules, and anything else the Tribunal considers relevant. Rule 10(2) of the NTCAT Rules requires the Tribunal to take into account how far a party's failure to comply with the Rules or a Tribunal direction wasted money or time. The Tribunal noted that because the starting point in a tribunal is different from a court, court authority on indemnity costs has to be read through that lens: conduct that would attract indemnity costs in a court will not automatically do so here.

Most of the estates' arguments failed. The claim that the landlord alone led the Tribunal into error in 2019 was rejected as novel and incorrect, partly because the broad test of habitability the estates themselves had urged was later narrowed by the Court of Appeal, and partly because responsibility for the Tribunal's own conclusions rests with the Tribunal. Complaints about concessions not made in 2019 were held to belong to the 2019 costs decision. The settlement argument failed because no actual offer was shown to have been made, and in particular no Calderbank offer, that is a written settlement offer made on terms that allow it to be used later on costs; a framework for discussion that went nowhere was not enough to prove a breach of the model litigant policy. The serious allegation that the landlord had hidden documents was tested against the gravity of what was alleged and was found not to be made out on the evidence. Allegations about a 2018 injunction and about submissions made in the Supreme Court were held to be outside this costs application.

What did justify a costs order was the waste. The landlord had been under Tribunal orders since 2016 to disclose all relevant documents and did not comply until August 2025. The Tribunal rejected the suggestion that the documents were merely contextual: they went directly to habitability and security, which were contested issues, and their late appearance called into question findings of fact, including facts the landlord had conceded. Whether the failure was deliberate or simply incompetent could not be determined, but no adequate explanation was ever given. The Tribunal also treated as relevant under section 132(2)(e) the Revised Model Litigant Policy, which requires government parties to deal with claims promptly and comply with orders and directions in a timely manner; a gap of almost ten years breached that. The attempt to revive the abandoned limitation defence was described as untenable, the abandonment being recorded in the 2019 reasons. The Tribunal also rejected the landlord's technical objection that the estates had not proved they owed their own lawyers anything, because the onus of proving the absence of a costs agreement lay on the landlord and it led no evidence on the point.

The final amount reflected a balance. Neither side had tried to simplify the issues, both led new evidence that consumed the first hearing day, and both ran points with little or no merit. Only one of twelve alleged breaches succeeded for the second home. The Tribunal held the costs sought were out of proportion to the degree of success, so indemnity costs were not appropriate, and settled on figures it said matched the extent of the success while recognising the unreasonableness of the landlord's conduct and its effect on the other side and the Tribunal.

What this means if you are in a similar position

If you are in a similar position, this decision shows how differently costs work in a tribunal compared with a court. In NTCAT the legislated starting point is that each side pays its own legal costs, win or lose. A costs order is an exception, and the decision shows the Tribunal looking for something concrete: a failure to comply with its orders, or conduct that demonstrably wasted hearing time and money, rather than general dissatisfaction with how the other side ran its case.

It also shows what carried weight and what did not. Allegations of concealment or bad faith were measured against how serious they were and were not accepted without evidence. Complaints about an earlier hearing were treated as belonging to the costs decision for that hearing. Settlement conduct only helps on costs if there is a real, recorded offer behind it. And even where the Tribunal found the landlord's conduct unreasonable, the award was scaled to how much of the claim actually succeeded, which is why an amount in the tens of thousands of dollars was never going to follow from a claim where one of twelve allegations was upheld.

For a tenant worried about a home that is not habitable or not secure, the practical step most people take first is a written notice to the landlord or agent that sets out each defect, what needs fixing and by when, keeping a dated copy and any photographs. If the problem is not fixed and compensation is being sought, that notice becomes part of the record, and an application to the tribunal in your state or territory is the usual next stage.

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

Source: The Estate of Conway, Young v Chief Executive Officer (Housing) (No.2) [2026] NTCAT 6 (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.