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[2026] NSWSC 1170
Supreme Court of NSW
2026-09-25
McGuire J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Boscolo v New South Wales Land and Housing Corporation [2026] NSWSC 1170
Hearing dates: 16 February 2026
Date of orders: 25 September 2026
Decision date: 25 September 2026
Jurisdiction: Common Law
Before: McGuire J
Decision: (1) Leave to appeal is refused;
(2) The plaintiff’s Further Amended Summons filed 4 December 2025 is dismissed; and
(3) The plaintiff is ordered to pay the defendant’s costs.
Catchwords: APPEALS – leave to appeal decision of Appeal Panel of NSW Civil and Administrative Tribunal (NCAT) – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – refusal to grant leave to appeal NCAT’s decision – termination of social housing tenancy agreement – breaches of agreement requiring reasonably clean premises and prohibiting hoarding – whether the clause prohibiting hoarding involved disability discrimination – no evidence landlord was aware of any presumed disorder – whether termination notice retaliatory – no evidence of any motivation to terminate on that basis – neither discrimination or retaliation grounds raised at first instance – factual determinations required which cannot properly be raised here – leave refused
EVIDENCE – objection to tender of photographs documenting cleanliness of premises – Residential Tenancies Act 2010 (NSW), s 55A – where smoke alarm inspector disseminated photographs of the premises’ exterior and interior to the landlord whilst carrying out inspections – dissemination of exterior photograph outside terms of provision –dissemination of interior photographs allowable between agent and landlord for approved purpose –photographs not impermissibly “published” by email or tender – tender admissible
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 4, 49A, 49N, 115
Civil and Administrative Tribunal Act 2013 (NSW), ss 29, 32, 80, 83
Disability Discrimination Act 1992 (Cth)
Residential Tenancies Act 2010 (NSW), ss 15, 55, 87, 115
Cases Cited: Boscolo v New South Wales Land and Housing Corporation [2025] NSWCATAP 15
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dokas v Gallagher (No 2) [2024] NSWCA 236
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135
Waterhouse v Bell (1991) 25 NSWLR 99
Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49
Category: Principal judgment
Parties: Sylvia Boscolo (Plaintiff)
New South Wales Land and Housing Corporation (Defendant)
Representation: Counsel:
M Fraser (Plaintiff)
A Bhasin (Defendant)
Solicitors:
NSW Department of Communities and Justice, Legal (Defendant)
File Number(s): 2025/98817
Publication restriction: Nil
This case concerns the termination of a social housing tenancy agreement between the plaintiff, Sylvia Boscolo, and the defendant, the New South Wales Land and Housing Corporation, relating to a residential property in Campbell Street, Glebe.
Termination proceedings were brought before a single member of the NSW Civil and Administrative Tribunal (NCAT), who refused the plaintiff’s adjournment application made on the first day of the hearing, and on 14 May 2024 made an order terminating the social housing tenancy agreement. That order was made under s 87 of the Residential Tenancies Act 2010 (NSW) (the RT Act), on the grounds that the plaintiff had breached the terms of the agreement requiring her to keep the premises reasonably clean and prohibiting hoarding. On 22 January 2025, the Appeal Panel of NCAT (Appeal Panel) found no error in the decision to refuse the adjournment application, found no error in the decision to terminate the agreement, and refused the plaintiff leave to appeal: Boscol**o v New South Wales Land and Housing Corporation [2025] NSWCATAP 15.
By Further Amended Summons filed on 4 December 2025, the plaintiff seeks the following orders:
Leave to appeal from the whole of the decision below;
Appeal allowed;
The judgment and orders of NCAT be set aside;
In lieu thereof:
(a) set aside the decision made on 14 May 2024; (b) dismiss the defendant’s application to NCAT;
Alternatively, remit the matter to the Appeal Panel to be determined in accordance with law; and
The defendant to pay the plaintiff’s costs of the application and the appeal.
The appeal is brought under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Because the originating Summons in this Court was filed out of time, the plaintiff requires leave to appeal. No evidence was filed to support the application for leave out of time. Counsel for the plaintiff, who was only recently briefed, indicated that she was unaware of the circumstances. The defendant conceded, in my view very fairly, that in circumstances where the plaintiff had until recently represented herself, the issue of leave to appeal out of time should fall to be determined on the merits of the appeal.
Additionally, leave to appeal is required by operation of s 83 for an appeal to this Court on a question of law.
The plaintiff raises the following grounds of appeal:
In rejecting the plaintiff’s submission that cl 43 of the agreement was void pursuant to s 15(4)(a) of the RT Act, in circumstances where the defendant submitted, and NCAT at first instance found, that the plaintiff’s hoarding behaviour in breach of cl 43 justified termination of the agreement, the Appeal Panel failed to correctly identify and address the question of law raised;
In asking whether the plaintiff claimed to have a disability, the Appeal Panel asked itself the wrong question. The Appeal Panel should have asked whether:
(a) hoarding behaviour was indicative of a disability within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the AD Act); (b) hoarding was a behaviour attributed to the plaintiff by others including the defendant with the effect that s 49A of the AD Act widened the definition to include a presumed disability; and (c) it was unlawful to evict the plaintiff on the ground of presumed disability pursuant to s 49N(2) of the AD Act;
The Appeal Panel should have held that cl 43 of the agreement, being a term additional to terms included in a standard form agreement, was void pursuant to s 15(4) of the RT Act, with the effect that the defendant’s application for termination for breach of cl 43 should have been dismissed; and
Whether, pursuant to s 115 of the RT Act, on considering the evidence relied upon by the defendant, and in particular the history of complaints made by the plaintiff and the lack of substance in the allegation of breach, the Appeal Panel should have considered making, and should have made, a declaration that the termination notice had no effect or alternatively should have refused to make a termination order.
Grounds 1 to 3 raise an issue of whether cl 43 of the agreement involves disability discrimination contrary to Pt 4A of the AD Act, such that the clause is void or the eviction was unlawful.
Ground 4 concerns an assertion that the Appeal Panel should have found that the termination notice was retaliatory and of no effect.
On 25 October 2019, the plaintiff and the defendant entered into a social housing agreement over the premises in Campbell Street, Glebe. The defendant is the landlord of the premises. The plaintiff is the tenant.
The plaintiff is 77 years of age and resides at the premises with her adult daughter, both of whom have ongoing health issues. The plaintiff and her daughter had previously lived at a different social housing premises in Glebe. The previous tenancy agreement was entered into in 2013 and was terminated by NCAT in 2019 on the grounds that the premises were wholly or partly uninhabitable.
The relevant terms of the present agreement are as follows.
Clause 14.1 provides that the plaintiff agrees to keep the premises reasonably clean.
“14. The tenant agrees:
14.1 to keep the residential premises reasonably clean …”
“21. The landlord agrees that the landlord’s agent or any person authorised in writing by the landlord, during the currency of this agreement, may only enter the residential premises in the following circumstances:
21.1 in an emergency (including entry for the purpose of carrying out urgent repairs),
21.2 if the NSW Civil and Administrative Tribunal so orders,
...
21.5 to inspect the premises, if the tenant is given at least 7 days written notice (no more than 4 inspections are allowed in any period of 12 months),
21.6 to carry out, or access the need for, necessary repairs, if the tenant is given at least 2 days notice each time,
21.7 to carry out, or assess the need for, work relating to statutory health and safety obligations relating to the residential premises, if the tenant is given at least 2 days notice each time.
...
21.10 if the tenant agrees.”
By operation of cl 24, the plaintiff agrees to give access to the premises to the landlord, the landlord’s agent or any person if they are exercising a right to enter the premises in accordance with the agreement.
Clause 43 defines “hoarding” and creates an obligation not to engage or participate in hording in the following terms:
“43. HOARDING
43.1 ‘Hoarding’ means having; and/or collecting; and/or acquiring; and/or keeping; and/or permitting objects in or at the premises of an amount; and/or at a level; and/or to an extent that:
43.1.1 impairs or prevents the use of the premises or any part of the premises as residential premises;
43.1.2 impairs or prevents the use of particular rooms within the premises for their intended purpose or purposes;
43.1.3 causes or permits the premises or any part of the premises to become or to be in a condition that is unsanitary and/or unsafe and/or that makes the premises or any part of the premises a risk to personal and/occupational and/public health and safety;
43.1.4 causes or permits the premises or part of the premises to become or to be in a condition that encourages infestation by or attracts rats, mice and other rodents, fleas, lice, moths, insects, vermin or other pests.
43.2 Consistently with sub-clause 14.1 of this agreement, the tenant agrees not to engage in or participate in or allow hoarding on the premises.”
Between 2020 to 2024, the defendant took various photographs documenting an accumulation of waste materials on the front porch of the premises and advised the plaintiff both in person and by written notice of the need to remove the rubbish and clean the premises. Upon being alerted that the plaintiff had refused to allow Fire and Rescue NSW to inspect the premises on 21 February 2024, a local council officer inspected the premises on 26 March 2024 and prepared an inspection report entitled “Unhealthy premises – hoarding” which included 9 photographs.
On 1 September 2023 and 13 December 2023, the defendant sent the plaintiff notices of termination for breaches of cll 14 and 43.
On 1 February 2024, the defendant applied to NCAT to terminate the agreement. NCAT heard the application on 9 May 2024. At the commencement of the hearing on 9 May 2024, the plaintiff, who represented herself, applied for an adjournment on the basis that she was unfit to proceed. The plaintiff relied on medical certificates in support of the application. In refusing the adjournment, NCAT found that the medical certificates lacked weight and did not provide a sufficient basis for adjourning the hearing.
The hearing then continued with the plaintiff making submissions on her own behalf. A volume of documents prepared by the defendant, which included documents the plaintiff relied upon, were in evidence before NCAT. The plaintiff was provided time to produce further evidence which she said she had forgotten to bring with her and wished to submit the following day. The plaintiff failed to produce that further evidence by 4:00 pm on 10 May 2024 or at any other time.
NCAT delivered its decision on 14 May 2024. The orders made by NCAT included the following:
“The Tribunal makes an order under section 87 of the Residential Tenancies Act 2010 (NSW) terminating the tenancy immediately, based on the tenant breaching clause 43 of the residential tenancy agreement, and vacant possession is to be given to the landlord on the date of termination.”
In reaching that decision, NCAT made a number of relevant factual findings. They included a determination that the plaintiff’s conduct constituted hoarding based on various photographs of the inside and outside of the premises, findings of Fire and Rescue NSW during an inspection and findings by the local council during an inspection. It found that there had been a clear breach of cl 43 of the agreement and that as a result, the defendant was entitled to give a termination notice to the plaintiff pursuant to s 87(1) of the RT Act. NCAT was satisfied that the plaintiff had breached the agreement and that the breach was sufficient to justify termination because of the safety risk, particularly in relation to fire, created by the state of the premises. It found that the nature of the plaintiff’s breach was both serious and significant and that there was nothing to indicate that the plaintiff had taken any steps to rectify the issue. It noted that the plaintiff denied that she was a hoarder.
NCAT then took into account competing considerations for and against termination of the agreement. In finding that termination was the preferable course, it took into account the factors which included the nature and extent of the hoarding issue, the period of time over which it had continued, the numerous opportunities for the plaintiff to address the issue and the heightened risk created by the state of the premises, as supported by Fire and Rescue NSW and the local council.
On 28 May 2025, the plaintiff appealed NCAT’s adjournment and termination decisions to the Appeal Panel. The appeal was heard on 18 October 2024.
Both the adjournment decision and termination decision of NCAT were internally appealable decisions: NCAT Act, ss 29(1), 29(2)(a), 29(3), 32(1)(a) and 80(1). Internal appeals of an interlocutory decision, such as the adjournment decision, can be made with leave of the Appeal Panel: NCAT Act, ss 4(1)(a) and 80(2)(a). The internal appeal of the termination decision was available as of right on any question of law, or on any other grounds, with the leave of the Appeal Panel: NCAT Act, s 80(2)(b).
On 22 January 2025, the Appeal Panel found that the plaintiff had failed to establish any of her grounds of appeal and refused leave to appeal the adjournment decision, refused leave to appeal the termination decision and otherwise dismissed the appeal. The Appeal Panel found that the plaintiff had failed to identify any ground of appeal that gave rise to a pure question of law and that the plaintiff had failed to establish that NCAT had erred in any respect in relation to which leave to appeal could be granted to appeal the adjournment decision or the termination decision.
The plaintiff represented herself at the hearing before the Appeal Panel. The transcript of those proceedings indicates that on numerous occasions she submitted that she was not a hoarder, that many of her belongings were stored in cardboard boxes because she did not have much furniture, and that the items which the defendant had previously claimed were stored on the outside front porch had been removed when the plaintiff arranged for and paid for their removal. The plaintiff made oral submissions that she and her daughter were not hoarders, that there was no evidence of hoarding and that there was no medical evidence that either of them suffered from any hoarding related disability.
In written submissions the plaintiff submitted the there was a denial of natural justice because she was not given an opportunity, because of the adjournment decision, to present evidence and make submissions on the “hoarding issue”. She further submitted in writing that the hoarding clause of the agreement contravened the AD Act and the D**isability Discrimination Act 1992 (Cth). She submitted that NCAT did not consider the fact that hoarding is a mental health disorder.
In written submissions to the Appeal Panel, the plaintiff submitted that NCAT erred in law by terminating her tenancy under the hoarding clause because that clause was discriminatory. She argued the clause was therefore void. However, that submission was put in the following way:
“My tenancy should not have been terminated on this basis. There was no evidence that I have been diagnosed with hoarding disorder. Therefore the clause is discriminatory against me and void in regards to my situation.”
“In our opinion, it is not controversial that hoarding may well be a disorder, however at no stage during the hearing before the Tribunal, or in this appeal, has the [plaintiff] indicated that she has a disability of this kind that falls within the meaning of section 4 of the AD Act. On the contrary, it was the position of the [plaintiff] that she was not a hoarder and denied that she had breached clause 43 of the tenancy agreement.”
Accordingly, the Appeal Panel concluded that the plaintiff had failed to establish that cl 43 of the agreement was discriminatory against her and that that clause was void.
In dealing with the plaintiff’s complaints that NCAT had failed to allow her to present evidence and to make submissions concerning the hoarding issue, the Appeal Panel noted that the plaintiff had been given additional time to submit further evidence about the state of cleanliness of the premises and that she had failed to do so. The Appeal Panel also noted that the plaintiff had made submissions on the topic. The Appeal Panel found that the plaintiff’s failure to submit further evidence or to make further or more detailed submissions on the topic must be considered in light of the fact that the defendant’s material had been served on her some 2 months before the hearing. Accordingly, the Appeal Panel found that the plaintiff had been given every reasonable opportunity to be heard, to tender evidence and to have submissions considered.
Counsel for the plaintiff objected to the tender of pages 1287 to 1291 inclusive of the defendant’s 4-volume court book. At those pages are a number of photographs of the state of cleanliness of the premises. The photograph at page 1287 is a photograph of the exterior of the premises showing plants, wheelie bins, an empty shopping trolley and various other items on the front porch. The photographs at pages 1288 to 1291 are photographs taken inside the premises showing cardboard boxes and other items in various rooms and hallways.
The objection was made on the basis that s 55A of the RT Act prohibits a landlord from publishing any photograph made of the interior of residential premises in which any of the tenant’s possessions are visible without first obtaining the tenant’s written consent. Counsel for the plaintiff submitted that there was no evidence that such consent had been obtained.
Section 55A(4) defines “published” for the purpose of that section as follows:
55A Publishing photographs of residential premises with tenant’s consent
(4) In this section, a photograph or visual recording is “published” if it is—
(a) publicly exhibited in, on, over or under any building, vehicle or place (whether or not a public place and whether on land or water), or in the air in view of persons being in any street or public place, or
(b) disseminated by means of a website, email or other electronic communication, or
(c) in the case of a photograph—
(i) inserted in any newspaper, periodical publication or other publication, or
(ii) contained in any flyer or other document sent or delivered to any person or thrown or left on premises occupied by any person.
Section 55A(5) provides that a photograph is not published if it is disseminated solely between the landlord and the landlord’s agent for the purposes relating to carrying out an inspection of the residential premises, maintenance or repairs.
Having heard from the parties during the hearing, I held that each of the photographs to which objection was made was admissible. What follows are my reasons for that ruling.
The provisions of s 55A of the RT Act do not apply to the photograph at page 1287. That photograph is of the exterior of the premises. Section 55A applies only to photographs of the interior of the premises in which a tenant’s possessions are visible. Accordingly, the section does not apply to the external photograph.
The photographs taken of internal areas in the premises depict what appears to be a number of the plaintiff’s possessions. However, all of the photographs are attached to an affidavit of Victoria Attard from the Glebe Tenancy Team of Homes NSW and filed on behalf of the defendant. That affidavit establishes that the photographs in question were taken on 25 November 2025 during a smoke alarm inspection conducted at the property by a contractor of MNI Electrospark All Trade Services. Ms Attard’s affidavit attaches emails passing between her and the operations manager of MNI Electrospark which attach the photographs. It can be inferred from the contents of the emails and from the content of Ms Attard’s affidavit that the photographs were taken and disseminated as part of an inspection of the smoke alarm conducted by or on behalf of MNI Electrospark, who was an agent of the landlord. Section 55A(5) permits the photographs to be disseminated between the landlord’s agent and the defendant for the purposes of carrying out an inspection of the premises, maintenance or repairs. Such a purpose includes inspecting the internal smoke alarms at the premises.
Further, the prohibition on publishing photographs is confined to photographs “published” as defined within s 55A(4). The emailing of photographs by a contractor to the landlord’s agent or by the landlord’s agent to the defendant or the tender of such material in the Supreme Court proceeding is not a relevant act of publishing within the terms of the section. None of those things amount to public exhibition, dissemination by means of a website, insertion in any newspaper, periodical publication or other publication, or inclusion in any flyer or document sent or delivered. To the extent the definition of published includes dissemination by email, the present emails sending the photographs to the defendant are excluded by operation of s 55A(5).
Accordingly, each of the photographs in relation to which objection was taken is admissible.
However, because the photographs in question were taken on 25 November 2025, being after the Appeal Panel’s decision, the relevance of the photographs is limited to the issues of whether or not leave should be granted and whether the Court should ultimately remit the matter back to NCAT.
During oral submissions, counsel for the plaintiff informed the Court that her client had instructed her to make it clear that she does not have a hoarding disorder or a hoarding problem. Counsel stated that she had been specifically instructed to put those matters on the record. Counsel conceded that there was no psychiatric, psychological or other medical evidence before the Appeal Panel to establish that the plaintiff suffered from a hoarding disorder. Counsel also conceded that there was no evidence before the Appeal Panel in relation to the DSM-5 diagnostic criteria for such a disorder. Counsel also conceded that a factual circumstance involving a tenant storing items in boxes and bags because of a lack of sufficient wardrobe or storage space may not in itself be sufficient to enliven the AD Act considerations, but that much would depend on evidence concerning the state of the whole premises.
Counsel for the plaintiff submitted that notwithstanding the plaintiff disavowing that she had a hoarding disorder, the evidence before the Appeal Panel established that the defendant considered that she had a hoarding disorder or hoarding problem. It was submitted that discrimination can occur in respect of someone thought to have a disorder, whether or not they in fact have that disorder. The plaintiff submitted that the accumulation of items, together with the period of time over which accumulation occurred, were sufficient to establish that the defendant believed the plaintiff had a hoarding disorder. It was submitted that the plaintiff’s invitation to the defendant or local council to come to the premises to assist in taking away some of the accumulated items was not sufficient to establish that she suffered diagnosable levels of stress associated with the thought of parting with the accumulated material. Counsel for the plaintiff conceded that there was no evidence that the plaintiff would suffer stress or distress if any of the accumulated material was removed from the house.
The plaintiff argued that the Appeal Panel upheld the breach of the agreement by virtue of a breach of cl 43. It was argued that cl 43 discriminates against people with a hoarding disability and is prohibited by s 15(4)(a) of the AD Act. Consequently, it was submitted that it should not have formed any part of the agreement and that the plaintiff should not have been found to have been in breach.
Counsel relied on the definition of “disability” in s 4 of the AD Act as including a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. The plaintiff relied on s 49A which extends the protection against discrimination on the grounds of disability to a person who is thought to have a disability.
The plaintiff relied on photographs showing a congested hallway, congested kitchen and other areas of congestion caused by an accumulation of items inside the premises to establish that the plaintiff suffered from a disorder, illness or disease that affects her thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. In particular, counsel relied on the photographs to establish a disorder which affected the plaintiff’s judgment or resulted in disturbed behaviour in congesting the premises to such an extent that the premises was “barely usable”.
Counsel for the defendant submitted that leave to appeal should be refused or, in the alternative, if leave were to be granted, that the appeal should be dismissed. The basis of that submission was that the defendant asserts that the proposed grounds the subject of the application for leave were not ventilated at all, or not ventilated properly, before the Appeal Panel. Further, the defendant submitted that consideration of the proposed grounds would require this Court to make factual determinations in the absence of relevant evidence on the issues. Accordingly, it submitted that grounds requiring factual determinations could not properly be raised in an appeal confined to appeals on questions of law.
Consistent with the approach taken in the plaintiff’s submissions, the defendant also dealt with grounds 1 to 3 together. It submitted that the plaintiff had failed to raise any complaint in the NCAT proceedings regarding cl 43 of the agreement being discriminatory. It submitted that because it was not raised at first instance, it was unsurprising that NCAT did not consider the issue.
The defendant drew attention to the plaintiff’s concessions in the proceedings before the Appeal Panel (and in those before NCAT) that she did not suffer from a hoarding disorder and that there was no medical evidence to establish that she suffered from such a disorder. The defendant also drew attention to the plaintiff’s assertions before the Appeal Panel that she did not engage in hoarding activities, but rather stored items in boxes and bags because of the lack of furniture.
The defendant submitted that the Appeal Panel dealt with the cl 43 issue in an entirely appropriate and orthodox manner that did not involve any error giving rise to a question of law. The Appeal Panel noted that the anti-discrimination point had not been raised in the NCAT proceedings and noted that the plaintiff did not indicate at any stage that she had a disability falling within the meaning of s 4 of the AD Act. The Appeal Panel approached the issue, as raised by the plaintiff, as to whether cl 43 had been breached. It did not consider, because the plaintiff had not raised, the validity of cl 43. Rather, it considered, as raised by the parties on the evidence and submissions before it, whether cl 43 had been breached and whether the breach of that clause provided a proper basis for termination of the agreement. The defendant submitted that, since the plaintiff did not raise the issue of validity in the Appeal Panel proceedings, the defendant did not make any submissions on that point.
In the alternative, the defendant argued that the plaintiff’s submissions to this Court on the discrimination grounds were not limited to questions of law. Rather, the defendant submitted that consideration of grounds 1 to 3 requires the resolution of numerous factual issues. Those issues, according to the defendant, included consideration of the following:
83 Appeals against appealable decisions
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
“(1) The right of appeal to the Supreme Court is confined to a ‘question of law’ and does not extend to any other matter, such as a question of fact.
(2) In addition, an appeal on a question of law can only be brought from a decision of the Appeal Panel where the leave of the Supreme Court has been obtained. As noted above, there is no requirement of leave in the case of an appeal to the Appeal Panel on a question of law under s 80(2)(b) of the CAT [sic] Act.”
Leave to appeal will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension which goes beyond something that is merely arguable: Dokas at [36].
In Targeted Property Investments Pty Ltd v Look U**p Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135, the Court was considering an appeal to the Supreme Court under s 83(1). There the Court, in a passage which was later adopted and approved by the Court of Appeal in Dokas, held that an applicant must persuade the Court that leave should be granted, noted that an appeal to the Court is limited to “an appeal on a question of law” and emphasised that it was not sufficient merely to assert that the tribunal erred in law in order to satisfy the limited conferral of jurisdiction. Further, it was held in Targeted Property Investments that it was a well-established principle that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law was involved or merely by asserting error itself.
Although counsel for the plaintiff made numerous submissions by reference to the evidence and submissions made to NCAT at first instance, it should be emphasised that an appeal under s 83(1) to this Court is confined to an appeal from the decision of the Appeal Panel and does not extend to NCAT’s decision at first instance: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10].
As established by those authorities, the existence of a question of law is not a mere qualifying condition to the appeal right, but the jurisdiction is only enlivened when a question of law alone is the subject matter of the appeal.
Although the plaintiff represented herself in the proceedings below, it is not this Court’s task to engage in a partisan analysis of her lengthy, unstructured assertions made in the proceedings below with a view to distil some legal issue that was not properly articulated by her in the appeal to the Appeal Panel: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. As was held by the Court of Appeal in Dokas, the observations in those authorities apply equally to the requirement that an applicant seeking leave to appeal to the Supreme Court under s 83(1) of the NCAT Act must identify a question of law to which the proposed appeal relates.
To submit to this Court that an appeal point raises a question of law whilst conceding that the point was not raised below, was only raised inferentially or was expressly disavowed in the proceedings below, creates an obvious difficultly for the plaintiff in establishing jurisdiction in this Court. As the High Court stated in (1986) 162 CLR 1; [1986] HCA 33 at 7-8, where an appellant seeks to raise on appeal a point that could have been the subject of contested evidence below, but was not, the general principle is that the point cannot be taken afterwards in appeal proceedings. There, the High Court held at 7-8:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards.”
Dealing firstly with ground 4, namely whether, pursuant to s 115 of the RT Act, on considering the evidence including a history of complaints made by the plaintiff, the Appeal Panel should have declared that the termination notice had no effect.
Section 115 applies in circumstances where a termination notice is found to be a “retaliatory notice”. Finding that a termination notice is a retaliatory notice requires satisfaction that the landlord was wholly or partly motivated to give the notice in retaliation for some conduct by the tenant in enforcing the tenant’s rights. Section 115 provides as follows:
115 Retaliatory evictions
(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
(b) refuse to make a termination order,
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.
Section 115(2) turns on the consideration of the landlord’s motivation, either in whole or in part. It requires evidence proving that the motivation to give a termination notice was in retaliation for the tenant applying or proposing to apply to NCAT for an order, taking or proposing to take action to enforce the tenant’s rights under the RT Act or because an order of NCAT was in force in relation to the landlord and tenant.
Counsel for the plaintiff has conceded that s 115 was not raised before the Appeal Panel and no appeal point or submissions to the Appeal Panel raised the issue of retaliation with respect to any of the possible motivations referred to in s 115(2).
The references relied on by the plaintiff in the transcript of proceedings before NCAT at first instance, to the plaintiff’s complaint that the defendant’s officers were talking to her neighbours, her complaints to the defendant, letters written on her behalf by doctors and her belief that she was being abused or targeted, say nothing about the defendant’s motivation in issuing the termination notice. Importantly, it was conceded on behalf of the plaintiff that she had breached numerous cleanup orders and had been given numerous warnings and opportunities to rectify any breach of cll 43 and 14 in relation to the state of cleanliness of the premises. The plaintiff’s argument that she may have not entirely understood the notice requiring her to clean up “all rubbish” was not supported by evidence and, even if accepted, does not assist in establishing that the defendant had retaliatory motives. To the contrary, the evidence in the NCAT and Appeal Panel proceedings establishes that the plaintiff had been given numerous opportunities and warnings leading up to the termination notice. Although that material coexists with letters of complaint by the plaintiff and letters written on her behalf, there is nothing to establish that any of those complaints or any of the plaintiff’s conduct, other than her breaches of the agreement, motivated the defendant in issuing the termination notice.
Because the issue of retaliation was not raised before the Appeal Panel and because no reference was made in those proceedings to s 115 of the RT Act, I am satisfied that no error has been established in the Appeal Panel failing to find the termination was retaliatory and of no effect.
Accordingly, leave to appeal on ground 4 is refused.
In relation to grounds 1 to 3, the discrimination grounds, I propose to deal with those grounds, as the parties dealt with them, collectively.
In the proceedings before the Appeal Panel, the plaintiff argued that the termination notice was invalid because she had not breached cl 43, the anti-hoarding provision of the agreement. She submitted on numerous occasions that she was not a hoarder, she did not engage in hoarding conduct and she did not suffer from a hoarding disability. Her argument before the Appeal Panel was that the termination notice was invalid because it wrongly asserted that she had breached cl 43 when she had not.
The plaintiff made submissions before the Appeal Panel that the photographs showing the accumulation of items in the premises was not evidence of hoarding but rather was evidence that she cleanly and appropriately stored her belongings in boxes and bags. She submitted that she did so, not because of any disorder, but because she was unable to afford wardrobes or other furniture. She maintained that her premises were clean, vermin free and not a fire risk.
Although the plaintiff made a brief written submission, which she repeated orally, that cl 43 was void because it breached the AD Act, she submitted that it was void and discriminatory because “There was no evidence that I have been diagnosed with [a] hoarding disorder. Therefore the clause is discriminatory against me and void in regards to my situation”. At no stage did the plaintiff submit that the clause discriminated against a class of people or that the clause was void generally. Rather, her submission was that it was void in its application to her because she did not suffer from a hoarding disorder.
Section 49N(2) of the AD Act makes it unlawful for a person to discriminate against another on the grounds of disability by evicting that person from their accommodation. Section 49N(2) provides:
49N Accom****modation
(2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability –
(a) By denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or
(b) By evicting the person, or
(c) By subjecting the person to any other detriment.
“disability” means—
(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
49A Disability includes past, future and presumed disability
A reference in this Part to a person’s disability is a reference to a disability—
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
The plaintiff relied on subsection (e) of the definition of disability, namely that the plaintiff was said to have a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. It was common ground between the parties that the only aspect of the definition of disability which could potentially apply to a person with a hoarding disorder was subsection (e). The plaintiff further relied on the extended definition in s 49A(b) as extending to a disability that the plaintiff “is thought to have (whether or not the person in fact had the disability)”.
As already noted, the plaintiff disavowed that she suffered from a hoarding disability.
Although the plaintiff relied on references in various inspection reports and other documents generated by the defendant, its contractors or its agents to the defendant “being a hoarder” or “hoarding”, there was no evidence before the Appeal Panel to establish that the plaintiff suffered from any disorder, illness or disease that affected her thought processes, perceptions of reality, emotions or judgment or resulted in disturbed behaviour. In the context of the plaintiff’s submissions below, that her accumulation of items was not a result of disturbed behaviour but a result of a lack of furniture, it is unsurprising that the Appeal Panel did not, contrary to the plaintiff’s own submissions, find that she suffered from a disability. In addition, there was no evidence to establish that the plaintiff was “thought to have” a disability of that nature. Mere references to the word hoarding or hoarder are insufficient to establish that there was evidence in the Appeal Panel proceedings sufficient to prove that the defendant thought that the plaintiff suffered from a disability that affected her thought processes, perception of reality, emotions or judgment or resulted in disturbed behaviour. In the absence of any expert medical evidence, and in the absence of any evidence that the defendant or its officers thought that the plaintiff suffered from such a disability, it is unsurprising that the Appeal Panel found no error in relation to this issue.
Because the discrimination issue had not been properly raised before NCAT, the Appeal Panel dealt with the submissions relating to discrimination in an appropriate and orthodox manner in finding that the appeal to the Appeal Panel did not involve any error giving rise to a question of law. The Appeal Panel was not required to construct for itself a complex, technical argument which had not been raised by the plaintiff at first instance. To do otherwise would have been contrary to the principle referred to above in Dokas.
Further, a determination of grounds 1 to 3 would require the resolution of a number of factual issues. Those factual issues include the diagnostic criteria for the symptoms of hoarding disorder, whether the plaintiff suffered from any of those criteria, the extent to which, if at all, her disorder affected her thought processes, perception of reality, emotions or judgment or resulted in disturbed behaviour and the extent to which, if at all, the defendant or its officers formed the opinion that the plaintiff was “thought to have” such a disability. None of that evidence was before the Appeal Panel.
“Section 39(1) refers to the ground on which a person is treated less favourably. The inquiry for which the section calls is a factual one…”
The High Court in Waters v Public Transport Corp (1991) 173 CLR 349; [1991] HCA 49 expressed the same principle at 393-394, though with respect to both direct discrimination and indirect discrimination. Dawson and Toohey JJ described that the inquiry at hand, which was whether discrimination on the ground of status or private life could be established pursuant to ss 17 and 29 of the Equal Opportunity Act 1984 (Vic), was dependent on how the matter was described and how the alleged discrimination vehicle was characterised.
The absence of relevant evidence on these issues establishes that the Appeal Panel made no error of law as asserted in grounds 1 to 3. Further, the requirement that there be such factual inquiry establishes that the plaintiff has failed to satisfy the requirements of s 83 of the NCAT Act.
Accordingly, leave to appeal on grounds 1 to 3 is refused.
For the above reasons, I make the following orders:
leave to appeal is refused;
the plaintiff’s Further Amended Summons filed 4 December 2025 is dismissed; and
the plaintiff is ordered to pay the defendant’s costs.
**********
Boscolo
New South Wales Land and Housing Corporation
[1986] HCA 33
(1986) 162 CLR 1
(1991) 25 NSWLR 99
(1991) 173 CLR 349
Counsel for the plaintiff was unable to point to any evidence to establish that the defendant was aware of any affect on the plaintiff’s perceptions of reality, emotions or judgment or of any resulting disturbed behaviour on the part of the plaintiff, other than the photographs showing the accumulated items themselves.
In her written submissions, the plaintiff dealt with grounds one, two and three together. She submitted that those grounds concern the application of s 15(4) of the RT Act and whether cl 43 of the agreement contravenes the AD Act and is therefore void. She submitted that the Appeal Panel failed to correctly identify and address the question of law raised by the plaintiff’s submission. In asking whether the plaintiff claimed to have a disability, she submitted that the Appeal Panel asked the wrong question. Instead, she argued the Appeal Panel should have considered whether a hoarding behaviour was indicative of a disability within the meaning of s 4 of the AD Act, whether hoarding was a behaviour attributed to the plaintiff by others, including the defendant, noting s 49A of the AD Act widened the definition of disability to include a presumed disability, and whether it was unlawful to evict the plaintiff on the grounds of that presumed disability. She submitted that the Appeal Panel should have held that cl 43 of the agreement was void pursuant to s 15(4) of the RT Act, with the effect that the defendant’s application for termination for breach of that clause should have been dismissed.
She further submitted that hoarding behaviour falls within the broad definition of disability in the AD Act. Attention was drawn to the Appeal Panel’s finding at [129] of its reasons that “in our opinion, it is not controversial that hoarding may well be a disorder…”. Further, hoarding was, according to the plaintiff’s submissions, disturbed behaviour indicating the presence of a disorder. Although counsel for the plaintiff accepted that, both in the proceedings before NCAT and in the proceedings before the Appeal Panel, the plaintiff denied being a hoarder and disavowed having a hoarding disorder or a disability, counsel for the plaintiff submitted, however, that the fact that the plaintiff denied being a hoarder was indicative of a disorder affecting her thought processes, perception of reality, emotions or judgment or resulting in disturbed behaviour. Alternatively, the plaintiff relied on evidence which indicated that the defendant had attributed the plaintiff with a hoarding problem. Reference was made to emails and correspondence where officers of the defendant described the plaintiff as “a known hoarder”, a “cronic [sic] hoarder who is collecting and acquiring rubbish” and someone with a “history of hoarding and squalor” and described the situation as the “worst case of hoarding they have experienced”. In the plaintiff’s submissions, the fact the plaintiff had a hoarding disorder or was thought to have had a hoarding disorder, regardless of whether or not she in fact has a disability, was sufficient to establish that cl 43 contravened the AD Act, should not have been included in the tenancy agreement and was void.
In relation to ground 4, the plaintiff submitted that the Appeal Panel should have considered making, and should have made, a determination that the termination had no effect, or alternatively should have refused to make a termination order, pursuant to s 115 of the RT Act. That submission was made on the basis that the termination was retaliatory because of an alleged history of complaints made by the plaintiff and on the basis of the lack of substance in the allegation of breach.
In support of this ground, the plaintiff submitted that there was a history of conflict between the plaintiff and the defendant and a history of the plaintiff complaining about her right to quiet enjoyment, and breaches of that right through inspections or works carried out by the defendant, and of her complaining that the defendant had failed to provide her with habitable and properly maintained premises. That history included complaints made by the plaintiff to the defendant, her doctors, local members of parliament, the police, NCAT and the Court. She submitted that those complaints, and her ongoing resistance to allowing the defendant’s officers into her home, were to enforce her right to quiet enjoyment of the premises. Thus, it was submitted that those complaints fell within s 115(2)(b) of the RT Act.
A concession was made in the plaintiff’s written submissions that because of the plaintiff’s resistance or refusal to comply with cleanup notices, some action by the defendant was warranted. However, it was submitted that the defendant should have pursued other more appropriate actions, other than seeking termination of the lease. In relation to the allegation of breach by failing to comply with cleanup notices, the plaintiff submitted the notices were “too vaguely worded” to put her on notice in relation to what she needed to do in order to comply. The lack of clarity, it was submitted, arose from the plaintiff’s apparent inability to understand what was meant by the term “all rubbish” in a direction to “remove all rubbish”.
The plaintiff did not dispute in this Court the Appeal Panel’s finding that she had breached cl 43 based on photographs and the findings of inspections carried out by Fire and Rescue NSW and the local council. Instead, the plaintiff submitted the question raised by ground of appeal 4 is whether the Appeal Panel should have found that NCAT was remiss in not considering the application of s 115 of the RT Act. She further asserted that it was an abuse of power for the defendant to apply for termination of the agreement, when termination was not warranted, and with an asserted goal of “getting rid of the troublesome tenant”.
what diagnostic criteria and symptoms would need to be established for proof of a hoarding disorder;
evidence as to whether such a disorder, illness or disease affects a person’s thought processes, perceptions of reality, emotions or judgment or results in disturbed behaviour, within the meaning of s 4 of the AD Act;
whether, contrary to her denials, the plaintiff suffered from a hoarding disorder;
the extent to which conduct prohibited by cl 14 corresponds with symptoms or behaviours exhibited by a person suffering from a hoarding disorder; and
whether the defendant or its officers thought that the plaintiff had a hoarding disorder or a disability.
In relation to that last factual issue, the defendant submitted that, having not raised the issue below, the defendant was deprived of an opportunity to address it in evidence, which presumably would have included evidence from the relevant case officers employed by the defendant and others who had inspected the premises as to whether or not the plaintiff was “thought to have” a hoarding disorder or disability. Whether the plaintiff’s case now was based on direct discrimination or indirect discrimination, the defendant argued that either inquiry raised factual issues and required evidence to address the issues.
Accordingly, it submitted that leave to appeal and grounds 1 to 3 should be refused.
In relation to ground 4, the defendant submitted that that ground should not be the subject of leave to appeal for the same reasons.
The defendant argued that the plaintiff sought to raise on appeal to this Court a new point that had not been raised before the Appeal Panel (or before NCAT). The defendant’s counsel submitted that those portions of the transcripts in front of the single member of NCAT, relied upon by the plaintiff as “inferentially” raising the retaliation issue, were insufficient to establish that the issue had been raised at all. In those passages of the transcript, the plaintiff referred to the conduct of the defendant as “a form of abuse”, referred to her complaints to housing and to letters written on her behalf by doctors about her situation, complaining that the defendant had been talking to her neighbours and asserted that she was “just being targeted”. The defendant submitted that those passages were insufficient to establish the ground that the plaintiff was now seeking to raise and that the point had not been properly raised below. The defendant in oral submissions drew the Court’s attention to the concession made by counsel for the plaintiff during her oral submissions that the plaintiff did not clearly or distinctly raise the issue below.
Counsel for the defendant also pointed to submissions made orally by counsel for the plaintiff that there was nothing in the transcripts or documents before the Appeal Panel to indicate that the issue of retaliation had been raised earlier, either expressly or implicitly.
In addition, the defendant submitted that the retaliation issue relevant to ground 4 involves a factual inquiry into whether the defendant was motivated, in whole or in part, to take the termination action in response to acts taken by the plaintiff to enforce her rights. It submitted that there was no evidence before the Appeal Panel in relation to that factual inquiry. In the absence of the issue having been factually raised before the Appeal Panel, the defendant submitted that no error had been established giving rise to a question of law suitable for the grant of leave to appeal to this Court in relation to ground 4.
An argument to this Court concerning discrimination is an inquiry that requires factual determination. That principle was enunciated by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99. Whilst that decision concerned a specific provision of the AD Act not considered presently relevant, dealing with discrimination on the ground of marital status, it has general application to matters said to involve discrimination. In that case, Clarke JA stated at 105: