Cawthorne v NSW Land and Housing Corporation

(1) the key statutory provisions;

(2) the background to the appeal;

(3) the history of the appeal.

1. Part 3 (ss 28-34) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with the jurisdiction of the Tribunal. Section 32 deals with the internal appeal jurisdiction of the Tribunal and relevantly states:

32 Internal appeal jurisdiction of Tribunal

...

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction -

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

1. Part 6 Div 2 (ss 80-81) contains provisions dealing with internal appeals. Section 80 deals with the making of internal appeals and relevantly states:

80 Making of internal appeals

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

(2) Any internal appeal may be made -

...

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

1. Section 81 deals with the determination of internal appeals and states:

81 Determination of internal appeals

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

1. Part 3 (regs 9-11) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation) contains miscellaneous provisions. Regulation 9 confers an additional power to set aside or vary a decision determining proceedings and relevantly states:

9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a)

(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if -

(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

...

(3) Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made.

...

1. Part 9 Div 1 (ss 187-189) of the Residential Tenancies Act 2010 (NSW) (RT Act) contains provisions dealing with the general powers of the Tribunal. Section 188 deals with the general order-making power of the Tribunal and relevantly states:

188 General order-making power of Tribunal

The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders -

...

(b) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings,

1. On 31 January 2014, Ms Cawthorne as the tenant and Housing NSW as the landlord entered into a social housing tenancy agreement in respect of premises at Orange in New South Wales (the tenancy agreement).
2. On 30 July 2024, Housing NSW commenced proceedings 2024/00279440 in the Consumer and Commercial Division of the Tribunal under the RT Act against Ms Cawthorne by lodging an application form in which it claimed various remedies.
3. On 11 December 2024, Housing NSW by written notice given to Ms Cawthorne declared that the tenancy agreement is subject to a further fixed term of five years commencing on 9 December 2024 and ending on 9 December 2029.
4. On 25 June 2025, the Tribunal constituted by General Member J Levingston made a decision comprising the following orders (the 25 June 2025 CCD orders) and a statement of reasons:

"1 The Tribunal makes an order under the Residential Tenancies Act 2010 terminating the tenancy immediately , where the tenant has breached the residential tenancy agreement. By failing to keep the premises reasonably clean

2 The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

3 The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 08 August 2025.

4 The tenant is to pay the landlord a daily occupation fee at the rate of $19.03 per day from the day after the date of termination, 25 June 2025, until the date vacant possession is given.

5 The landlord may request the relisting of this application to determine the occupation fee owing, within 60 days from the date of possession.

6 Either party may relist or renew these proceedings and pay the relevant filing fee, on or before 29 August 2025, for further orders if there is any difficulty arising in relation to or out of these orders.

Note: This does not prevent the landlord requesting the issue of a warrant of possession. If Ms Cawthorne does not co-operate in being placed in alternative accommodation to avoid her becoming homeless."

1. On 6 August 2025, Ms Cawthorne appealed against the 25 June 2025 CCD orders by lodging a notice of appeal:

(1) in which in section 5B she specifies the following grounds of appeal:

"Ground 1 Did the Tribunal fail to consider mandatory considerations under ss 87(4) and 154E of the Residential Tenancies Act 2010 (RT Act) prior to terminating the tenancy?

Particulars

a. Prior to making a termination order under s87 of the RT Act, the Tribunal must consider and make positive findings of the matters outlined in s87(4) of the RT Act.

b Prior to exercising the discretion to terminate a social housing tenancy, the Tribunal must also have regard to the mandatory considerations outlined in s 154E of the RT Act.

c Both parties provided written evidence that was relevant to the overall circumstances of the case, including evidence that the tenant has multiple significant disabilities (such as diabetes, epilepsy and osteoarthritis), was recently approved for an NDlS plan including home supports, and was experiencing a mental health crisis following the death of her parents and an application for Guardianship that was later dismissed.

d Although the Tribunal noted the tenant s ill health when assessing the existence of a breach the Tribunal failed to consider whether the breach was in the circumstances of the case, sufficient to justify termination as required by s87(4)(b) of the RT Act.

e The written reasons reveal that the Tribunal also failed to have regard to s154E of the RT Act prior to terminating the tenancy and in doing so, fell into error.

Ground 2 Did the Tribunal make a jurisdictional error by proceeding to terminate the tenancy without having made all required findings under section 87(4) of the Act?

Particulars

a. Section 87(4) of the RT Act outlines preconditions to the exercise of the Tribunals jurisdiction to terminate a tenancy agreement pursuant to section 87 of the RT Act.

b Prior to 25/6/25, the Tribunal had not made any findings as to the alleged breach as the matter had previously been resolved by consent orders and returned on relist.

c. On 25/6/25, the Tribunal failed to make required findings under s87(4) prior to ordering the termination of the tenancy and in doing so, lapsed into error.

Ground 3: Did the Tribunal fall into error by failing to provide adequate reasons for its decision?

Particulars

a. Section 62 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) outlines the manners in which the Tribunal may provide notice of a decision to the parties.

b. Section 62(3) of the CAT Act provides that a written statement of reasons must set out:

a. The findings on material questions of fact, referring to the evidence or other material on which those findings were based,

b. The Tribunal's understanding of the applicable law,

c. The reasoning processes that lead the Tribunal to the conclusions it made.

c. The written reasons provided by the Tribunal on 25/6/25 are inadequate because they:

a. Do not include findings on material facts,

b. Do not refer to the evidence or testimony that is the basis of its findings,

c. Do not outline the Tribunals understanding of the relevant law or its application to the current matter,

d. Do not show or explain the reasoning processes that led to individual conclusions or the ultimate outcome."

(2) in which in section 7 she gives an explanation for seeking an extension of time to appeal.

1. On 18 August 2025, Housing NSW lodged a reply to appeal:

(1) in which in section 3B it states that there is no error on a question of law in respect of grounds 1, 2 and 3;

(2) in which in section 5 it states that it does not object to the Appeal Panel extending the time for lodging the appeal.

1. On 20 August 2025, the Appeal Panel constituted by myself made procedural directions for the hearing of the appeal including listing the appeal for hearing on 10 December 2025 at 10.15 am in Sydney for a half day.
2. On 17 October 2025, Ms Cawthorne's solicitor sent an email to the Appeal Registry attaching consent orders dated 17 October 2025 signed herself and Housing NSW's solicitor which were in the following terms (the original consent orders):

"By consent, the parties agree to the Tribunal making the following orders:

1 The time for lodging the appeal is extended to 6 August 2025.

2 The appeal is allowed.

3 The Orders made by the Tribunal on 25 June 2025 in proceedings 2024/00279440 are set aside and substituted with the following:

1. The Tenant is to comply with the terms of the Residential Tenancy Agreement dated 31 January 2014, to keep the residential premises reasonably clean.

2. The Landlord is authorised access to the residential premises once-per-calendar month, beginning in November 2025 and ending in April 2026, for the purpose of a routine property inspection to monitor compliance with Order 1. The Landlord must give to the Tenant 7 days' written notice of each scheduled inspection.

3. If the above orders are not complied with, then at any time on or before 17 April 2026, the Landlord may relist this application for the Tribunal to determine whether the residential tenancy agreement should be terminated.

The Tribunal notes:

4. The Tenant concedes that she has breached the agreement by failing to keep the property reasonably clean.

4 These Orders may be made in Chambers by the Appeal Panel, and if so, the hearing listed for 10 December 2025 is to be vacated, and the parties are not required to attend."

1. On 21 October 2025, the Appeal Panel constituted by myself made a decision comprising the following orders (the 21 October 2025 AP orders) and a statement of reasons:

"1 The Appeal Panel declines to make the orders in the Consent Orders dated 17 October 2025 signed by the Solicitor for each of the Appellant and the Respondent submitted to the Appeal Registry on 17 October 2025 (the Proposed Consent Orders).

2. The Appeal Panel will give consideration to dispensing with a hearing and making the Proposed Consent Orders if the parties lodge evidence and/or submissions that address the issues of whether the Proposed Consent Orders can be made without a hearing and the decision under appeal contains arguable appealable error."

1. On 24 October 2025, Ms Cawthorne's solicitor delivered a letter of that date to the Appeal Registry (the 24 October 2025 Cawthorne letter) attaching the amended consent orders which are in the following terms:

"Pursuant to ss. 32(2) and 81(2) of the Civil and Administrative Tribunal Act 2013, the Appeal Panel may exercise all the functions that are conferred on the Tribunal at first instance, including the functions conferred by Regulation 9(1)(a) of the Civil and Administrative Tribunal Regulation 2022 and section 188 of the Residential Tenancies Act 2010.

By consent, the parties agree to the Tribunal making the following orders:

1. The orders made by the Tribunal on 25 June 2025 in proceedings 2024/00279440 are set aside and substituted with the following orders:

1. The Tenant is to comply with the terms of the Residential Tenancy Agreement, dated 31 January 2014, to keep the residential premises reasonably clean.

2. The Landlord is authorised access to the residential premises once-per-calendar month, beginning in November 2025 and ending in April 2026, for the purpose of a routine property inspection to. monitor compliance with Order 1. The Landlord must give to the Tenant 7 days' written notice of each scheduled inspection.

3. If the above orders are not complied with, then at any time on or before 17 April 2026, the Landlord may relist this application for the Tribunal to determine whether the residential tenancy agreement should be terminated.

The Tribunal notes:

4. The Tenant concedes that she has breached the agreement by failing to keep the property reasonably clean.

2 The Appeal is otherwise dismissed.

3 The hearing listed for 10 December 2025 is vacated, and the parties are not required to attend."

(1) whether a hearing should be dispensed with;

(2) whether the amended consent orders should be made.

1. The parties have requested that the amended consent orders be made in chambers.
2. I am satisfied that the issue of whether the amended consent orders should be made can be adequately determined in the absence of the parties by considering their written submissions. Accordingly, I have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing.

Whether the amended consent orders should be made

1. Before considering this issue, I have set out the submissions of the parties.

1. Ms Cawthorne's solicitor in the 24 October 2025 Cawthorne letter refers to order 2 of the 21 October 2025 AP orders and relevantly submits:

"In response to this, the Parties jointly submit that, pursuant to ss. 32(2) and 81(2) of the Civil and Administrative Tribunal Act 2013, the Appeal Panel may exercise all of the functions that are conferred on the Tribunal at first instance, including the functions conferred by Regulation 9(1)(a) of the Civil and Administrative Tribunal Regulation 2022, namely, "In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if all of the parties to the proceedings have consented to the marking of the order to set aside or vary the decision".

This is supported by the Appeal Panel in Zahra v Baker [2022] NSWCATAP 145 at [11]- [13], a copy of this decision is enclosed. The enabling legislation, the Residential Tenancies Act 2010, also confers broad powers on the Tribunal to set aside orders made in earlier proceedings (see s.188). The Amended Proposed Consent Orders give effect to the settlement terms between the parties but no longer seeks an order allowing the appeal, as was previously sought in the Proposed Consent Orders, dated 17 October 2025."

1. In Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 the High Court of Australia considered an appeal from the order of the Full Family Court refusing to reinstate an appeal. The plurality (Gaudron, McHugh, Gummow and Hayne JJ) discussed the difference between an appeal by way of rehearing and a hearing de novo, and said at [23]:

"[23] ... the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. ..." (citations omitted)

1. The Appeal Panel, like a court, is not bound to make consent orders. As explained by Mahoney JA in John Lysaght Australia Ltd v Butfield [1995] NSWCA 221 (John Lysaght):

"The fact the parties asked a Court to make consent orders does not necessarily mean the Court is bound to make those orders. The Court may feel it inappropriate to make consent orders if those orders are, in the circumstances, not the proper orders to be made."

1. The notice of appeal was not lodged within the time limit of 14 days specified in r 25(4)(b) when read with par (d) of the definition of residential proceedings in r 3(1) of the Civil and Administrative Tribunal Rules 2014 (NSW). This failure to lodge the notice of appeal within time is to be treated as an irregularity and does not nullify the appeal by reason of the operation of s 53(3) of the NCAT Act.
2. The amended consent orders do not contain an extension of time to lodge the notice of appeal as was provided in order 1 of the original consent orders. In the absence of an order correcting the irregularity of the notice of appeal not having been lodged within time, I have decided that the amended consent orders are not the proper orders to be made.
3. I would not have made the amended consent orders even if they contained an order correcting this irregularity for the following reasons:

(1) I do not accept that order 2 is appropriate in circumstances where the 25 June 2025 CCD orders are set aside pursuant to order 1. This order is a consequential order on the appeal being allowed, rather than the appeal being dismissed;

(2) I am not satisfied on the proper construction of ss 32(2)(b) and 81(2) of the NCAT Act and one or both of reg 9(1)(a) of the NCAT Regulation and s 188(b) of the RT Act that the Appeal Panel has power to set aside the 25 June 2025 CCD orders and make another decision in substitution for them where the appeal is dismissed under s 81(1)(a) of the NCAT Act. It is implicit in Zahra v Baker [2022] NSWCATAP 145 at [11]- [13], where the order at first instance was set aside and the appeal dismissed, that a differently constituted Appeal Panel considered that this power exists. Having regard to the principle of consistency in Appeal Panel decisions explained in Australian Postal Corporation v Williams [2024] NSWCATAP 168 at [27]- [32], I would not have followed Zahra v Baker as I consider that its determination on this question of law is wrong. It is contradiction to dismiss an appeal, and to set aside the orders under appeal and make another decision in substitution for them. There is no indication in the NCAT Act that the powers in ss 32(2)(b) and 81(2) may be exercised whether or not there was error at first instance. Further, there is no indication in Zahra v Baker that the Appeal Panel was dealing with the appeal by way of a new hearing under s 81(3)(a) of the NCAT Act;

(3) even if ss 32(2)(b) and 81(2) of the NCAT Act and one or both of reg 9(1)(a) of the NCAT Regulation and s 188(b) of the RT Act on their proper construction empower the Appeal Panel to set aside the 25 June 2025 CCD orders and make another decision in substitution for them where the appeal is dismissed under s 81(1)(a) of the NCAT Act, I would not have exercised this power as the application for the making of the amended consent orders was not submitted within seven days of the making of the 25 June 2025 CCD orders and the amended consent orders do not contain an extension of time for the making of the application as required by reg 9(3) of the NCAT Regulation.

1. The New South Wales Court of Appeal has considered the principles to be applied in deciding whether to make consent orders allowing an appeal on several occasions. In John Lysaght the consent orders were proposed in an appeal where an appeal to the High Court of Australia had been upheld and returned to the Court of Appeal for reconsideration in the light of its reasons for upholding the appeal. Mahoney JA made the consent orders and relevantly said:

"... It is prima facie the duty of this Court to reconsider the matter itself. ...

...

I have detailed these matters because it should not be taken from the fact that the Court is making orders by consent upholding the appeal and returning the matter to the judge below that the Court has formed the opinion that the orders which it had made were necessarily wrong."

1. In Young v King [2013] NSWCA 364 the consent orders were proposed in an appeal from a interlocutory decision of the Land and Environment Court. Leeming JA at [3] in making the consent orders confirmed that he was satisfied that each of the errors conceded by the respondents amounts to appellable error and noted the observations of Mahoney JA in John Lysaght.
2. In Tzaneros Investment Pty Ltd v Walker Group Construction Pty Limited; Walker Group Construction Pty Limited v Tzaneros Investment Pty Ltd [2023] NSWCA 122 the consent orders were proposed in proceedings for judicial review of a judgment of the District Court on an appeal from a decision of a costs assessment review panel pursuant to s 384 of the Legal Profession Act 2004 (NSW) on a question of law. Brereton JA in making the consent orders, after referring to John Lysaght, relevantly said at [3]:

"... That judgment also importantly indicates, as I would emphasise in the present proceedings, that the Court's granting of that relief does not involve any determination by the Court that any ground of review has been made good. I am however satisfied that there is a sufficiently reasonable argument that his Honour's apparent view that the matter was governed by s 363 of the Legal Profession Act involved a misapprehension of the question, as to make it appropriate to accede to the parties' request."

1. Appellate courts in other jurisdictions have considered the principles to be applied in deciding whether to make consent orders allowing an appeal. In Andrew Foote v Susan Virginia Dixon (2013) 8 ACTLR 65; [2013] ACTCA 25 the consent orders were proposed in an appeal against a judgment in which the respondent was awarded damages by single judge against the appellant for medical negligence. The consent orders provided that the appeal was allowed and the proceedings be remitted to the court constituted by single judge for further hearing and decision with the agreement that the proceedings would then be terminated. The respondent's submissions rejected the proposition that any arguable appellable error needed to be identified, and declined to identify any such error. The Australian Capital Territory Court of Appeal (Penfold, Burns and Cowdroy JJ) in refusing to make the consent orders relevantly said at [13], [19]-[21]:

"[13] Allowing an appeal by consent if the respondent concedes error is not uncommon. However, the Federal Court has in recent years addressed the question of the correct test which must be satisfied to enable the court to set aside a prior decision by consent."

"[19] The Full Court in Walker proceeded to apply the test of an "arguable appealable error".

[20] Such approach avoids the criticisms by the Full Court in Citigroup of the requirement imposed in Telstra, namely that actual error must be shown in order to enliven the court's power to set aside a judgment by consent. In contrast to requiring actual error to be shown, the test of "arguable appealable error" is not so burdensome on the parties as to engage the criticisms set out in Citigroup in their full force. Further, it ensures that the court is not merely treated as a "rubber stamp" as would be the case if an appeal were allowed solely upon the consensual request of the parties: see GW v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247 at [7]. Accordingly, the test of whether an arguable appealable error exists in the primary judgment is the test that this court adopts.

[21] The existence of arguable appealable error in the present application was disputed by the respondent. In these circumstances, it is impossible for the parties to maintain that the application to set aside the primary judge's decision is made by consent. As such, the application must be dismissed."

1. In Alegria v Transport Accident Commission [2017] VSCA 379; (2017) 83 MVR 189 the consent orders were proposed in an application for leave to appeal against an order refusing the applicant leave to commence proceedings for common law damages in respect of injuries suffered as result of a transport accident. The consent orders provided for a grant of leave to the applicant to appeal, the allowing of the appeal, the setting aside of the judge's orders and the remittal of the applicant's application to the County Court, for rehearing before a differently constituted court. In support of the proposed consent orders, the parties filed a joint memorandum signed by counsel for the parties. The Victoria Court of Appeal (Osborn and Beach JJA) in making the consent orders relevantly said at [6], [16]:

"[6] Even though the orders now sought are sought by consent, as has been said before, they cannot be made unless this Court is satisfied that the judgment under challenge, and the orders made pursuant to it, are wrong - or at least sufficiently problematic to warrant that they be set aside and a new hearing ordered. ..."

"[16] In determining whether the consent orders the parties seek should be made, it is sufficient for us to say that, in the light of the way the case was conducted at first instance, the concessions by the respondent as to the inadequacy of the judge's reasons are rightly made. ..."

1. The making of consent orders allowing an appeal has been considered by the Full Federal Court on several occasions. Unlike in other jurisdictions, an express power is conferred on the Federal Court to make consent orders disposing of an appeal: Federal Court of Australia Act 1976 (Cth), s 25(2B). In Wardman v Macquarie Bank Limited (No 2) (2023) 300 FCR 159; [2023] FCAFC 125 (Wardman) the consent orders were proposed in multiple appeals by the appellant, who were former employees, and by the respondent, the former employer, in three proceedings that involved contraventions of the Fair Work Act 2009 (Cth) related to payment of wages, leave and holidays pay, and annual leave loading. The consent orders provided for the allowing of the appeal, the setting aside of the primary judge's orders and the dismissing of the three proceedings. In support of the proposed consent orders, the parties filed a joint memorandum signed by counsel for the represented parties and the unrepresented parties. The Full Federal Court made the consent orders. There were the following two judgments:

(1) the plurality (Bromberg and Wheelahan JJ) referred to the conflicting authorities as whether it is necessary before making consent orders allowing an appeal for the Court to be satisfied that there was an appellable error, or only that there was an arguable error, and relevantly said at [14]:

"[14] ... There is much to be said for the view that the only material condition that must be established in order to engage the power in s 25(2B)(b) to dispose of an appeal is the existence of consent, and that whether the Court should be satisfied of arguable error, and if so to what degree of satisfaction, goes to the discretion to exercise the power, and is not a condition on the existence of the power. ... On the assumption that the existence of appellable error goes to discretion, the level of satisfaction required might depend upon the nature of the orders that are sought, and whether the legal interests of non-parties are affected. For instance, if a retrial is sought by consent, then before public resources are committed to that course the Court on appeal should normally be satisfied that a retrial is appropriate. On the other hand, in a dispute between parties about the quantum of damages, a Court might more readily act on the parties' consent to final orders on appeal in substitution for those made at trial."

"[36] ... For present purposes, the proper exercise of the discretion conferred by s 25(2B)(b) depends upon the circumstances; and, in some appeals, it may well be that the discretion should not be exercised absent some identification of error or arguable error. Regardless, the existence or perception of error is merely a consideration that might be taken into account in the exercise of the court's broad discretion."

1. The function of the Appeal Panel as required by s 81(1) of the NCAT Act, except where it decides in the exercise of the discretion under s 80(3)(a) to deal with the internal appeal by way of a new hearing, is to determine the internal appeal. This determination is by way of rehearing: Yuen v Thom [2016] NSWCATAP 243 at [20]. As explained in Allesch v Maunz at [23], the powers of the Appeal Panel are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Appeal Panel, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. Where the Appeal Panel is considering whether to make consent orders allowing an appeal, I am satisfied that the principle that should be applied is that the Appeal Panel is satisfied of the existence of arguable appealable error. The observations in Wardman at [14] and [36] are distinguishable as they relate to the exercise of the power in s 25(2B) of the Federal Court of Australia Act which may be seen as a statutory provision which indicates that the powers of the court may be exercised whether or not there was error at first instance as recognised in Allesch v Maunz at [23].
2. Where the Appeal Panel is asked to make consent orders allowing an appeal against orders made under the RT Act and is satisfied of the existence of arguable appealable error, the Appeal Panel may consider that it is proper pursuant to s 81(2) of the NCAT Act to make orders in the exercise of the functions conferred on the Tribunal at first instance under the RT Act including s 188(b). As explained by the Appeal Panel in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [143], s 188(b) confers an appropriate discretion on the Tribunal so that it can ensure that orders previously made in relation to a continuing relationship of landlord and tenant cannot become an impediment to doing justice in later proceedings concerning that relationship.

(1) A hearing of the application of the parties to make amended consent orders submitted on 24 October 2025 is dispensed with.

(2) The application of the parties to make amended consent orders submitted on 24 October 2025 is dismissed.

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.