Archibald v Agustin

1. In this residential tenancy matter, the appellant (the Tenant) appeals from orders made by the Tribunal on 1 May 2025 terminating his residential tenancy agreement with the respondent (the Landlord). The agreement relates to a unit in Corrimal, south of Sydney. The Tenant has occupied the unit for some 11 years.
2. The orders were made under the no grounds for termination provision in the Residential Tenancies Act 2010 (NSW) (RTA) which then was in operation, namely s 85. At the time when the orders were made, it was uncontroversial that a residential tenancy agreement existed between the parties, the agreement was a periodic tenancy agreement and a 90 day no grounds termination notice had been given by the Landlord to the Tenant.
3. There were 5 orders made by the Tribunal on 1 May 2025 in respect of which oral reasons were given. Those orders encompassed an order terminating the tenancy immediately, an order for vacant possession to be given on the date of termination, suspension of the order for possession until 1 June 2025 and an order that the Tenant pay the Landlord a daily occupation fee at the rate of $48.57 per day, from the day after the date of termination until the date vacant possession was given.
4. The Tenant lodged his appeal within the 14 day time requirement, pursuant to rule 25(4)(b) of the NSW Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) on 12 May 2025. On 1 June 2025 and Appeal Panel granted a stay of the relevant orders for termination and possession until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time. The stay was conditional upon the Tenant paying any arrears of rent or occupation fee, as at 28 May 2025, and continuing to pay the occupation fee on a fortnightly basis from 1 June 2025.
5. For the reasons set out below, we have decided that the appeal should be allowed, the orders made be set aside and the matter be remitted to the Tribunal for reconsideration.

1. The termination notice was dated 6 November 2024. It identified that it was a no grounds termination notice of a periodic agreement pursuant to s 85 of the RTA and it provided for vacant possession to be given on 5 February 2025, being a date not earlier than 90 days after this date of service of the notice.
2. Relevantly, s 85 of the RTA then provided:

85 Termination of periodic agreement - no grounds required to be given

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

1. For reasons which are not clear, the hearing of the termination application did not come on for a first hearing until 1 May 2025
2. It is common ground that at the hearing of the primary proceedings, the Tenant attempted to challenge the Notice of Termination on the grounds that it was retaliatory, pursuant to s 115 of the RTA at the hearing.
3. Section 115 of the RTA provides:

(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice -

(a) declare that a termination notice has no effect, or

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons -

(a) the tenant had applied or proposed to apply to the Tribunal for an order,

(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c) an order of the Tribunal was in force in relation to the landlord and tenant.

(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

1. As expanded upon below, there is no dispute between the parties that the Tribunal found that the Tenant could not raise s 115 of the RTA as a defence, in the Landlord's application for termination pursuant to s 85 of the RTA. The parties agree that the Tribunal indicated to the Tenant they needed to make a separate application claiming the Notice of Termination was retaliatory.
2. Having declined to consider the tenant's retaliatory defence against the landlord's Notice of Termination, the Tribunal went on to consider the termination claim.
3. Under the then prevailing s 85 of the RTA, the Tribunal then made an order for termination once satisfied that the termination notice had been given in accordance with this section and the tenant had not vacated the premises as required by the notice.
4. Under s 83 of the RTA, if the Tribunal made an order terminating a residential tenancy agreement, it was obliged to make an order for possession of the residential premises specifying the day on which the order took effect. Pursuant to s 114 of the RTA, the Tribunal then made an order to suspend the operation of an order for possession for a specified period, on the basis that it was satisfied it was "desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension."

1. Under s 80 of the NSW Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal, as a right, to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that:

.....the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)

1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely.

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

2 questions of public importance or matters of administration or policy which might have general application; or

3 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;

4 a factual error that was unreasonably arrived at and clearly mistaken; or

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,

1. In the Notice of Appeal, the short summary of the grounds of appeal contained the following:

1. procedural error: our statement was never asked to present or read out in the hearing (sic).

2. legal error: the order abiding by the pending change law which no ground eviction is allowed was made against the fact, the fact is that the termination notice was of retaliatory action.

3. humanitarian error: the pending ditched law has the error which might help landlord and their agents punish their tenants. However, the Tribunal still exercised the pending abandon law to vacate tenants to streets in circumstances of housing crisis, that is inhumane and unacceptable (sic).

1. We have considered whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We consider that the only question of law raised by the Tenant was whether the appellant was afforded procedural fairness in respect of the issue whether the Notice of Termination was retaliatory.
2. In addition to raising what the Tenant considered to be errors of law, the Tenant also sought leave to appeal on the basis that the decision was not fair and equitable, it was against the weight of evidence and there was significant new evidence now available that was not reasonably available at the time of the hearing.
3. So far as the new evidence was concerned, the Tenant relied upon a statement by himself and his wife (a fellow occupant), along with some supporting documents. The statement was concerned with two matters. First, an allegation that the termination was a retaliatory action, as a consequence of the stance the Tenant had taken in October 2024 about a rusty stove. The second matter concerned the Tenant's inability to find alternative rental premises and an allegation that the Landlord's agent had been unhelpful and hostile in relation to these attempts.
4. Following directions for the conduct of the appeal made on 21 May 2025, the parties provided various documents in support of their positions on the appeal. This included a formal Reply to Appeal lodged by the Landlord on 18 June 2025, in which the Landlord listed a short reply to the grounds of appeal as follows:

"1. the tenant case was heard as the member ruled that the tenant were terminated and were given a longer period to vacate.

2. the termination was dated november 2024. there was no retaliation on owners behalf the owner concern is to make unit the safe and liveable.

3. MMJ north have offered a rental unit in their price range that was rejected, MMJ wollongong approved application for a property which they declined, all rental references were filled out fair and truthfully."

1. The Tenant's additional documents in support of his appeal consisted of documents lodged on 25 June 2025 headed "Statements (rectified 2)", an informal transcript of parts of the hearing on 1 May 2025 and various supporting documents. The Tenant also lodged on 5 August 2025 a reply to the Landlord's submission.
2. The Landlord relied upon a bundle of documents consisting of 49 pages lodged on 17 July 2025. A substantial part of this material was new evidentiary material, not presented to the Tribunal in the primary proceedings.
3. None of this material, other than the transcript, could be relevant on the appeal, except in the event that we decided that there was appealable error and that we should conduct a new hearing on the merits.
4. We have read all of the written materials presented by the parties.
5. At the hearing of the appeal, we received oral submissions from each of the parties.

Retaliatory termination defence-procedural fairness

1. In the appeal hearing, the parties both agreed that the Tribunal had declined to hear the retaliatory claim raised by the Tenant. The parts of an informal transcript provided by the Tenant were also not disputed by the Landlord.
2. The transcript demonstrates that the Tenant sought to present to the Tribunal a statement about a contention that the termination was retaliatory. At approximately 10m:17s the transcript shows, the following exchange between the Tenant (Ronald) and the Tribunal:

"Ronald: because I believe it's retaliatory, they have...

Representative for Ronald: can you read this (point to the statement)?

Sitting member: no. it's nothing about... If you have a claim for retaliatory notice, you need to make an application about that.

1. The Tribunal then continued to indicate that a retaliatory claim would need to be brought in a separate claim by the tenant (see at approximately 12m:40s of the transcript). It is further noted by the Tribunal that the retaliatory application had not been made by the tenant (see at approximately 14m:49s of the transcript).
2. The Tenant's representative then stated that the NCAT website does not indicate that the Tenant is required to make a separate application if they claim the notice of termination is retaliatory (see at approximately 14m:49s of the transcript).
3. The Tribunal went on to explain that the Tenant had not made an application in relation to the retaliatory claim, and the only application before the Tribunal was the Landlord's termination application.
4. After the parties were unable to come to an agreement, the Tribunal gave its decision with reasons (see at approximately 45m:58s of the transcript). The reasons do not address the retaliatory claim the tenant had attempted to raise at the hearing.
5. This sequence of events is not disputed by the Landlord.
6. The issue whether s115 of the RTA can be used as a defence to an application by a landlord was settled in Chatterjee v Pandya [2024] NSWCATAP 85 (Chatterjee) at [65], where the Appeal Panel said:

We are satisfied that, as a matter of statutory construction, s 115 of the RT Act can be raised as a response to an application by a landlord to terminate a tenancy irrespective whether or not the tenant filed proceedings in the Tribunal under s 115(3) of the RT Act.

1. The Appeal Panel went on to further expand on the practical application of s115 of the RTA in Chatterjee at [72] - [74], where it said:

72 An example of a situation where a tenant makes an application under s 115(3) is when a tenant has received a "no grounds" Notice to Terminate under s 85 of the RT Act. Such a notice gives the tenant 90 days to vacate the premises. The tenant can bring an application in the Tribunal under s 115(3) to have that Notice declared as having no effect because it is retaliatory, before the landlord makes an application to the Tribunal for an order to terminate the residential tenancy.

73 However, the right of the tenant to do so does not mean the tenant loses the right to raise the issue of the landlord's termination application being retaliatory at (or before) the hearing of the landlord's application for a termination order. Section 115(1)(b) means that the tenant can raise in defence to the landlord's application for a termination order that the landlord's actions in seeking a termination order are retaliatory under s 115(2), and such an issue is a matter for consideration by the Tribunal at the hearing of the landlord's termination application in the Tribunal.

(1) Section 115(3) is not the exclusive manner in which s 115(1) and (2) may be considered by the Tribunal.

(2) A tenant may raise the issue of the eviction being retaliatory as a defence to the landlord's application, at or before the hearing of the landlord's application to terminate the tenancy in the Tribunal.

(3) The time limit set out in cl 39 of the RT Regulation only applies to an application filed by the tenant in the Tribunal under s 115(3), and not to the tenant otherwise raising the issue as a defence to the landlord's application for a termination order.

(4) When considering whether a landlord's termination application is retaliatory, the principles in Hughes apply.

1. The Appeal Panel also went on to consider whether any time limits apply to the tenant raising a s115(1)(b) of the RTA defence in the landlord's proceedings and found that no time limit applied to the tenant, as the proceedings were the landlord's application (see Chatterjee at [79]).
2. In Chatterjee, the Appeal Panel went on to conclude that the tenant had not been afforded procedural fairness with the consequence that an error on a question of law had been established. This was in circumstances where the tenant had in substance raised as a defence that the termination sought was retaliatory (albeit the tenant had not used the word "retaliatory): see at [85]-[99].
3. In doing so, the Appeal Panel applied the well-established principle that the Tribunal must observe the rules of procedural fairness.
4. In this connection, the Appeal Panel in Chatterjee had regard to the well-known judgement of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 and the statement that in this field "the concern of the law is to avoid practical injustice" (at [37]). As to this, in Chatterjee at [90] the Appeal Panel referred to extracts from the decision in Lam which addressed the question whether a lost opportunity was of any significance. The Appeal Panel stated:

[90] The principle expressed in Lam has been considered and followed on many occasions. In Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272, Basten AJ again referred to the Lam principle as follows at [73]-[74]:

"Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[13] was a case in which the applicant said that procedural fairness arose from the failure of a departmental officer to contact a particular witness, having agreed to do so. Gleeson CJ stated:

'22 The applicant was unable to point to any additional information, or any argument, that might have been put before the respondent if there had been contact between the Department and Ms Tran following 7 November 2000, or if the applicant had been told that there would be no such contact. There is nothing to justify a view that, considered objectively, proper decision-making required further contact with Ms Tran.'

[74] In short, the lost opportunity was not shown to have caused any detriment to the applicant. Gleeson CJ continued:

'37 A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. ... A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'"

1. As to practical injustice, the Tenant clearly raised the question of a retaliatory notice of termination and s 115 of the RTA with the Tribunal at the hearing. This is not in dispute. The Tenant also provided some basis for the raising of the retaliatory grounds, in that the Tenant had sought repairs and the Landlord had refused the repairs, making the claim the repairs sought were damage caused by the Tenant. The Tenant indicated he took a number of steps toward enforcing the repairs sought, including notifying the Landlord's agent and following up on the warranty with the supplier. Within a few weeks of this dispute arising (dispute commenced on 16 October 2024 according to the Tenant statement), the Landlord issued the notice of termination on no grounds (dated 6 November 2024).
2. Had the Tribunal recognised that a defence of retaliation could be pursued without a separate claim and considered the Tenant's statement, it ought to have been apparent to it that the Tenant had an arguable defence under s 115(1)(b) given the close proximity to a dispute about repairs, (where the Tenant has indicated his stance about repairs, and taken some steps, towards enforcing his rights) to the service of the notice of termination on no grounds..
3. We consider, therefore, that Tribunals refusal to consider the s 115 retaliatory allegation as a defence to the Landlord's claim has resulted in a lost opportunity for the Tenant to present legal arguments and evidence, that may have resulted in a different outcome. In these circumstances, the Tenant has been denied procedural fairness.
4. Therefore, an error on a question of law has been established.
5. It is unnecessary to consider the remaining grounds of appeal.
6. The proceedings must be remitted to the Tribunal in order for a decision to be made about the Landlord's application for termination in the light of the Tenant's defence under s 115(1)(b) that the Tribunal should refuse to make a termination order because the termination notice was retaliatory notice. Unlike the short and straightforward situation in Chatterjee (in which the Appeal Panel proceeded to determine the merits of the defence), in this case there is a real dispute about material facts which may also require findings about the credibility of witnesses.
7. Directions will need to be made by the Tribunal for the provision by the Tenant and the Landlord of evidence and submissions in respect of this defence. Given the nature of the error made by the Tribunal, we see no need for the reconsideration to occur before a Tribunal differently constituted, although we recognise that this may occur because of questions of availability and convenience.

(1) The appeal is upheld.

(2) The orders of the Tribunal made on 1 May 2025 are set aside.

(3) The proceedings are remitted to the Tribunal to be reconsidered according to law.

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.