The application leading to the Decision was lodged by the Appellant on 18 July 2025 by which the Appellant was exercising the right set out in cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (the Regulation). Clause 9 of the Regulation states as follows:
[2]
9Additional 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.
Example--: The Act, sections 45(3), 53(4), 63, 64(3) and 73(3) expressly confer powers to set aside or vary decisions of the Tribunal.
(2) The Tribunal may make an order under this section of its own motion or on the application of a party.
(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.
(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this section unless the Tribunal has--
(a) given the parties an opportunity to make submissions about the proposed order, and
(b) taken any submissions into account.
(5) A party may not make an application for an order under this section to set aside or vary a decision of the Tribunal if--
(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or
(b) an application for a judicial review of the decision has been made or determined.
(6) A party may not, without the leave of the Tribunal, make an application for an order under this section to set aside or vary a decision of the Tribunal if the party has previously made an application under this section to have the decision set aside or varied.
(7) If the Tribunal sets aside a decision under this section, it may also set aside orders that it made consequent on the decision that has been set aside.
Example--: An order for costs in the proceedings is a consequential order.
(8) Proceedings for this section are prescribed for the Act, section 50(1)(d).
Note--: A hearing is not required for proceedings that are prescribed for the Act, section 50(1)(d).
(9) This section does not limit a power of the Tribunal to set aside, revoke or vary its interlocutory decisions or other decisions that do not operate to determine proceedings.
[3]
It can be seen that cl 9 provides a basis to set aside a decision previously made by the Tribunal if all of the parties consent or if 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". In this case, the parties have not consented to the setting aside of the orders recorded in the Decision and there is no dispute that the Appellant was absent when the Decision was made. In Hammond v Ozzy's Cheapest Cars, the Appeal Panel held that the Tribunal's power to set aside a decision that determines proceedings arises where the Tribunal is satisfied that the decision was made in the absence of a party and that the absence resulted in the party's case not being adequately put to the Tribunal: [64]. The Appeal Panel in that decision stated that if these two requirements are satisfied the Tribunal still has a discretion to set aside or vary the decision. This follows from the use of the word "may" in the chapeau to cl 9(1): [65].
At [76] of Hammond v Ozzy's Cheapest Cars, the Appeal Panel stated that the central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand.
It is uncontroversial that justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case. In Hammond v Ozzy's Cheapest Cars, the Appeal Panel held that an injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile: see [79] of Hammond v Ozzy's Cheapest Cars.
Attached to the Appellant's application to set aside the Decision the Appellant provided evidence concerning the circumstances that resulted in him arriving at the Tribunal approximately 30 minutes after the application had been determined. The explanation largely concerned health issues being suffered by the Appellant. Attached to the submissions was a medical certificate stating that the Appellant was suffering a "medical condition" on 14 July 2025 and that he was "unfit to continue his usual occupation". The submissions do not include any information relevant to how or on what basis the Appellant would have opposed the Respondent's application. This is important because of the requirement under cl 9 for a decision to be set aside is that the Tribunal must be "satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal".
The Decision essentially gave two reasons for dismissing the Appellant's application. The first was that the Appellant had not provided a "reasonable explanation for failure to appear" and, related to that, that the medical evidence was not sufficient in explaining the failure to appear. The second reason given by the Tribunal was that there was "still no material provided that discloses the issues to be raised by the tenant in response to the application".
The grounds of appeal do not address the second of the Tribunal's reasons (namely the finding that the Appellant had not provided material that discloses the evidence that the Appellant wanted to raise in opposition to the Respondent's application). Rather, the grounds of appeal take issue with the Tribunal's finding that the Appellant's absence was not the subject of a reasonable explanation.
Even if we were prepared to accept that the Appellant's ill health provided a reasonable explanation for his failure to attend the Tribunal on time, the fact remains that there was no evidence enabling the Tribunal to be satisfied that the Appellant's absence resulted in his case not being adequately put to the Tribunal. Therefore, the Tribunal did not err in deciding not to exercise its discretion to set aside the earlier decision of 14th July 2025.
It is our conclusion that the Tribunal did not err in its reasoning. Grounds 1 and 2 are rejected. No error of law has been established and nor has the Appellant identified any basis for the granting of leave to appeal. Further there is no basis to find that the Decision failed to address the central question, namely whether an injustice would arise if the decision of 14th July were not set aside.
We add that, even if we were to give the Appellant latitude by considering his submissions provided at the appeal hearing, we would remain of the view that he did not have a case that, if put to the Tribunal on 14 July 2025, would have resulted in the orders that were made not being made. That is because the Appellant acknowledged that he had a box in an area outside his tenanted area.
[4]
For the above reasons, the appeal must be dismissed. We therefore make the following order:
[5]
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.
Parties
Applicant/Plaintiff:
Chan
Respondent/Defendant:
NSW Land & Housing Corporation [2026] NSWCATAP 117;
Legislation Cited (3)
Administrative Tribunal Act 2013
Administrative Tribunal Regulation 2022
Tenancies Act 2010
Cases Cited (1)
This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal and is therefore regulated by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and the provisions of cl 12 of sch 4 of the NCAT Act. The Decision concerned a set aside application. Further, a decision on a set aside application is an ancillary decision as defined in s 4(1) of the NCAT Act: see Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales[2015] NSWCATAP 65 at [39] and [40].
Essentially this means that the Appellant may appeal as of right on a question of law and with leave on the basis set out in cl 12. The provisions of cl 12 are as follows: