Douglas v Lin

1. This decision is concerned with two appeals by Joseph Douglas (the appellant and tenant) against orders made in the Consumer and Commercial Division (CCD) of the Tribunal on 28 March 2025 and 6 May 2025 in relation to an application made by Rui Lin (the respondent and landlord) regarding a residential tenancy agreement between the parties.
2. Having considered the submissions and arguments, we have decided to refuse leave to appeal and to dismiss both appeals, for the reasons set out below.

1. The proceedings between the parties have an elaborate history which is best explained in chronological form.
2. We have derived the following chronology from the orders provided by the parties and submissions on the file, with particular reference to the facts which are relevant to the appeals which are before us. The names of Members are only included where specific reference has been made to their orders by the tenant. The parties have been referred to as tenant and landlord in the CCD orders and for consistency, we will use those terms in the decision.

14 June 2023: The landlord and tenant entered into a residential tenancy agreement at $1000 per week.

23 April 2024: The landlord caused a notice of rent increase to be issued with rent to increase to $1100 pw from 26 June 2024.

1 July 2024: Both parties acknowledge that no rent has been paid since this date.

22 August 2024 CCD file number 2024/00310800 (not under appeal in these proceedings): The landlord filed proceedings in the CCD for termination of the residential tenancy agreement due to non-payment of rent.

10 September 2024 in 2024/00310800: consent orders were made, with a timetable for the tenant to pay rent arears of $12,948.60 (from 19 June 2024 to 10 September 2024) and leave to relist.

6 November 2024 in 2024/00310800: in relist proceedings, the Tribunal made orders for an adjournment and setting a timetable for exchange of documents.

7 November 2024 appeal panel file number 2024/00414571: the tenant appealed the orders for an adjournment and setting a timetable for exchange of documents which had been made on 6 November 2024 in 2024/00310800.

11 November 2024 in 2024/00414571: the call over and hearing of the application for a stay were listed for 20 November 2024.

20 November 2024 in 2024/00414571: the Appeal Panel set a timetable for exchange of documents and (order 7) dismissed the application for a stay (oral reasons given).

21 November 2024 in 2024/00414571: the tenant applied for a stay of order 7 of 20 November 2024.

27 November 2024 in 2024/00414571: the Appeal Panel made a decision on the papers dismissing the tenant's application for a stay of order 7 made on 20 November 2024 on the basis that no appeal of the stay decision had been lodged.

6 December 2024 in 2024/00310800: Member C. Campbell declined to make the orders for termination sought by the landlord as the tenant had filed an appeal which was listed for hearing on 5 March 2024.

8 January 2025 in 2024/00414571: the hearing date of 5 March 2025 was vacated and the hearing of the appeal was listed on 28 January 2025 in Parramatta.

20 January 2025 in 2024/00414571: the request by the tenant for an adjournment of the hearing of the appeal on 28 January 2025 was refused.

28 January 2025 in 2024/00414571: the tenant's application for an adjournment was refused and the appeal was dismissed (both sets of reasons were given orally). The directions made on 6 November 2024 were affirmed with the modification that the tenant had 7 more days to comply with orders 3 to 5. The landlord's application was directed to be heard in the CCD as soon as the registry could fix a date and time.

10 February 2025 in 2024/00310800: the matter was adjourned, noting that the matter had been stayed by orders of the Supreme Court until 4 March 2025 and could not proceed on that day. However, the Tribunal further noted that the termination notice issued on 30 January 2024 specified 13 February 2024 as the termination date. The termination notice issued on 17 July 2024 specified a termination date of 30 July 2024. Both were only 13 days after the date of each notice and therefore did not comply with s87(2) Residential Tenancies Act 2010 (the RTA) and the landlord was invited to consider whether the matter should be withdrawn.

10 February 2025: the landlord withdrew from matter 2024/00310800 and caused a new termination notice to be issued for non-payment of rent with a termination date of 26 February 2025**.**

27 February 2025 in 2025/00078649: The landlord lodged an application in the CCD for a termination order against the tenant for non-payment of rent. According to the application, the rent was paid to 18 June 2024 (with a part payment of $151.40). The last rental payment received from the tenant had been on 1 July 2024.

28 March 2025 in 2025/00078649: Member C Ng made orders adjourning the matter to a date to be fixed and noting a signed agreement between the parties for the tenant to pay the rent arrears - see further paragraphs [18] and [19] below.

15 April 2025 in 2025/00148764: The tenant lodged a notice of appeal (for the purposes of these proceedings, the first appeal) and an application for a stay of the adjournment and consent orders in 2025/00078649 dated 28 March 2025.

2 May 2025 in 2025/00148764: the Appeal Panel made a timetable for lodgement of documents.

6 May 2025 in 2025/00078649: Member E Sarofim conducted a hearing and made final orders terminating the tenancy and suspending the order for possession for five days - see further paragraphs [62] - [65] below.

2 May 2025 in 2025/00148764: the Appeal Panel made orders setting a timetable for the lodgement of documents and listing the matter for hearing on 14 August 2025.

8 May 2025 in 2025/00176694: The tenant lodged a notice of appeal and an application for a stay of the decision in 2025/00078649 (for the purposes of these proceedings, the second appeal) dated 6 May 2025.

12 May 2025 in 2025/00148764: the hearing was rescheduled from 14 August 2025 to 26 June 2025.

16 May 2025 in 2025/00176694: the stay application was dismissed with oral reasons.

23 May 2025 in 2025/00176694 and 2025/00148764: the tenant sent to the Appeal Panel orders which had been made in the Supreme Court on 21 May 2025 that the decision of the Appeal Panel issued on 2 May 2025 be stayed pending the hearing of a Summons seeking leave to appeal or 5pm on 4 June 2025, whichever occurred first. The tenant had not sought any orders from the Appeal Panel on the basis of the Supreme Court orders, therefore no orders were made. The Appeal Panel noted that the landlord had booked the sheriff to enforce a warrant for possession on 27 May 2025.

26 May 2025 in 2025/00176694 and 2025/00148764: the tenant's stay applications were refused.

(1) In 2025/00148764 (the first appeal):

(a) A Notice of Appeal and application for a stay lodged on 15 April 2025.

(b) The tenant's submissions regarding the stay application lodged on 28 April 2025;

(c) The landlord's reply to the appeal lodged on 30 April 2025; and

(d) The landlord's submissions in reply to the stay application on 30 April 2025.

(2) In 2025/00176694 (the second appeal):

(a) A Notice of Appeal and application for a stay lodged on 8 May 2025;

(b) The tenant's submissions regarding the stay application lodged on 13 May 2025;

(c) The landlord's submissions opposing the stay application lodged on 14 May 2025 and

(d) The tenant's submissions in reply lodged on 16 May 2025.

1. The parties provided further oral submissions at the Appeal hearing on 26 June 2025, where the landlord was represented by the managing agent for the property.
2. The tenant advised that he had been evicted from the premises by the sheriff on 30 May 2025. He maintained his grounds of appeal in relation to both appeals.
3. The landlord's agent advised that the landlord was residing in China at the time that the CCD application was lodged and was not residing in another Australian state.
4. The tenant did not provide sound recordings or transcripts of the hearings on 28 March 2025 or 6 May 2025.

1. The bases upon which appeals from decisions of the Tribunal may be brought are identified in s80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). That section stipulates different bases for appeal, depending on the type of decision which is appealed.
2. In the case of an interlocutory decision of the Tribunal at first instance, an internal appeal may be made with the leave of the Appeal Panel: s80(2)(a) of the NCAT Act.
3. In the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds': s80(2)(b) of the NCAT Act.
4. In the case of an appeal against an order of the Tribunal for the termination of a tenancy under the RTA, cl 12(2)(b) of Sch 4 to the NCAT Act provides that an internal appeal against a decision of the Tribunal in the CCD may only be made on a question of law (as of right) and not on any other grounds (even with leave) if it is an appeal against an order of the Tribunal for the termination of a tenancy under the RTA and a warrant for possession has been executed in relation to the order.
5. It is important to note that an appeal is not an opportunity for the losing party to rerun the party's case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. As the Appeal Panel observed in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, referring to relevant authorities at [25] - [40], a question of law means a pure question of law. It is not a mixed question of fact and law, and it does not depend on facts not found. In Donohoe v Albulario [2025] NSWSC 9 (Donohoe) at [30] - [33] Basten JA gave further guidance as to whether a question of law is raised.

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the CCD under s80(2)(b) of the NCAT Act only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

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

1. As cl 12 of Sch 4 only applies to s80(2)(b), it does not apply to an internal appeal of an interlocutory decision of the Tribunal at first instance, such as Order 1 of the orders of 28 March 2025.

1. On 28 March 2025, the Tribunal made the following orders:

1. The hearing is adjourned to a date and time to be confirmed by the registrar to a group list

2. By consent of parties, the tenant and landlord agreed in a signed agreement to the following instalment plan to pay his rental arears:

The Tenant to pay

(a) $10,000 by cob on 7/4/25

(b) the balance of $34,200.03 by cob on 28/4/25.

1. In written reasons, the Member noted that the landlord did not seek a money order for the 283 days in rental arrears ($44,200.93). As this was in excess of the statutory limit of $15,000, the landlord proposed to seek this amount in another jurisdiction. The Tribunal noted that, based on the documents filed by the landlord's agent, all the requirements had been made out to support a termination of the residential tenancy agreement on the basis of non-payment of rent after being given a termination notice where the tenant was in arrears for more than 14 days. The tenant had conceded he was in rental arrears, and acknowledged that he had not paid his rent because he had a dispute with the landlord and believed that he owed him money. Although he had commenced proceedings in another jurisdiction against the landlord in the unrelated dispute, it was explained to the tenant that, as all the requirements had been fulfilled under sections 82 and 88 of the RTA, the Tribunal could proceed to terminate his rental agreement if he continued to be in rental arrears. The tenant entered into the agreement to pay his arrears and the application was adjourned to the next hearing date "to see if he has complied with these payments."

Summary of the tenant's written and oral submissions in the first appeal

1. The tenant contested both the adjournment order and the order recognising the written agreement entered into by the parties regarding an instalment plan to pay the tenant's rental areas.
2. Regarding the adjournment: The tenant argued that he had been denied procedural fairness because the Member had not mentioned that he intended to adjourn the hearing and the tenant had not been consulted in regard to the date and time of the adjournment.
3. Regarding the payment agreement: The tenant further contended that he had been denied procedural fairness and threatened and the Member had not allowed him to arrange to repay the arrears in small instalments. At the hearing, the tenant contended that he had signed the agreement under duress. The Member had told him that he had to pay $50,000 or he would be evicted. He had been surrounded by about 12 sheriffs in the hearing room and felt compelled to sign the agreement, even though he did not agree with it. The tenant confirmed that he had signed the agreement.
4. The Member had further made an error of law because there had been no agreement to raise the rent as a past application had been withdrawn. The Member had also made an error of law because he did not take into consideration the fact that the landlord owed the tenant money.
5. Further the landlord's whereabouts were a mystery because the landlord's agent had claimed in the Supreme Court that he was in China but his address was listed in the tenancy agreement as being in New South Wales. Possibly the landlord was Interstate which would make the application invalid.
6. These submissions were largely repeated in relation to the decision not being fair and equitable, against the weight of the evidence and significant new evidence now being available.
7. At the Appeal hearing, the tenant confirmed that he understood that the landlord had been seeking a termination order but not a money order in the proceedings on 28 March 2025.

Summary of the landlord's written and oral submissions in the first appeal

1. In response, the landlord contended that the Member had adjourned the matter and said that the registry would inform the parties of the date of the adjourned hearing by email a couple of weeks after the hearing of 28 March 2025. Neither party was consulted on the timing of the adjourned hearing. The landlord considered that the adjournment favoured the tenant who had already been provided with an extension of time to rectify his breaches of ss82 and 88 of the RTA, despite it being noted in the written reasons dated 28 March 2025 that the requirements to terminate his rental agreement had been met. There was no procedural requirement to consult parties on their availability to attend a hearing and there was no procedural unfairness in granting the adjournment. In any event, it was now irrelevant.
2. The tenant had voluntarily agreed to a payment plan on 28 March 2025 and also previously agreed to a payment plan in a consent order dated 10 September 2024. The tenant had failed to comply with either order. The landlord refuted the tenant's assertion that he was not given the opportunity to pay in smaller instalments. The tenant had declined the opportunity to conciliate with the agent when the Member suggested this option. The Member had allowed the tenant to put up what he could afford. Two, not 12, sheriffs had been called on the day of the hearing due to the tenant's behaviour. The agreement was signed in the hearing room on a blue conciliation form and would be on the CCD file. The landlord did not have a copy. The notation of the agreement in the orders did not constitute an order by consent. It was a fair outcome for the tenant who had not paid any rent.
3. The landlord further noted that the order did not include a request for the tenant to pay his usual rent in accordance with the residential tenancy agreement. The appeal would deny procedural fairness to the landlord who was seeking termination of the tenancy due to frequent failure to pay rent rather than a money order. The termination of the tenancy had already been delayed by the adjournment which favoured the tenant given the significant arrears balance of $49,248.60. The appeal proceedings would only further exacerbate the disadvantage to the landlord.
4. Regarding the rent increase, the tenant had negotiated the increase amount which was amended from $1150 to $1100 per week. If the tenant wished to contest that increase, he was required to file a separate Tribunal application. Even if the tenant did not accept the increase, he was not entitled to go on a rent strike and not pay any rent whatsoever after 1 July 2024. The appeal of the decision was not in the interests of justice from the landlord's perspective.

1. The issues raised in the first appeal require us firstly to consider whether the tenant requires an extension of time in which to lodge the Notice of Appeal against the orders of 28 March 2025. For the reasons set out below, we have decided that an extension of time is not required.
2. In light of the requirements of s80 NCAT Act, we must then determine the basis on which the tenant can appeal the orders of 28 March 2025. We have decided for the reasons set out below that, as the only decision made on 28 March 2025 was the adjournment order (which is an interlocutory decision to which s80(2)(a) applies), the tenant requires leave to appeal.
3. We have then found that there is no basis on which to grant leave to appeal the adjournment order.
4. In any event, even if the tenant had a right of appeal, the Tribunal has not been shown to have failed to accord procedural fairness to the tenant in making the orders on 28 March 2025.

Does the tenant require an extension of time in which to lodge the Notice of Appeal against the orders of 28 March 2025?

1. Although the Notice of Appeal appears to have been lodged outside the 14 day period from the time of notification of the decision of 28 March 2025 specified in rule 25(4)(b) to the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules), the tenant set out in the notice of appeal that the notice of decision was received on 7 April 2025. The landlord disputed this in the written reply, contending that the tenant was emailed the Tribunal's decision on 28 March 2025.
2. At the hearing the tenant clarified that he had not received the orders of 28 March 2025 by email. If he had received the orders on the day, he would have appealed more quickly. The orders had simply not arrived. He had enquired at the NCAT counter and then the orders were emailed to him on 7 April 2025.
3. Considering his previous experience in the Tribunal, we accept that the tenant would have lodged an appeal at an earlier date had he received the orders on the day that they were issued. In light of his explanation, we accept that he received the orders on 7 April 2025. The 14 day time limit ran from the day that the tenant was notified of the decision. The appeal was lodged on 15 April 2025 and was therefore made within time, No extension of time is required.

On what basis can the tenant appeal the orders of 28 March 2025?

1. Order 1 of 28 March 2025 was an adjournment order "to a date and time to be confirmed by the registrar to a group list".
2. In s4 of the NCAT Act, an interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning, relevantly, (a) the granting of a stay or adjournment.
3. In the case of an interlocutory decision of the Tribunal at first instance, an internal appeal may be made with the leave of the Appeal Panel: s80(2)(a) of the NCAT Act. As noted in [17] above, cl 12 of Schedule 4 to the NCAT Act does not apply to s 80(2)(a).
4. In Choi v The Owners - Strata Plan No. 52482 [2025] NSWCATAP 85 (Choi) at [39] the Appeal Panel noted that the NCAT Act did not identify the criteria to be taken into account in determining whether to grant leave to appeal from an interlocutory decision of the Tribunal at first instance but found:

... the guiding principle set out in section 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings is clearly contextually relevant, as the Appeal Panel noted in Bratby v Blain [2014] NSWCATAP 28 at [13]. In that case the Appeal Panel stated (at [15]) that a relevant principle was to take into account the degree of injustice that would be suffered as a consequence of the order or direction.

1. The Appeal Panel in Choi at [40] also applied the principles in Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 at [35], where the Appeal Panel, whilst noting that it was unnecessary and unwise to set out rigid rules of practice or exhaustive criteria, identified a number of principles relevant to a grant of leave to appeal from an interlocutory decision, including that:

• circumstances justifying leave may be an error of principle resulting in substantial injustice;

• there is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights;

• where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal;

• restraint should be applied in reviewing a decision on a matter of practice and procedure; and

• leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered.

1. In the first appeal, the tenant raised questions of law in relation to procedural fairness (see below at [89] - [91]), failure to take into account a central submission (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and Rodger v De Gelder [2015] NSWCA 211 at [95]) and jurisdictional error (Burns v Corbett [2018] HCA 15).
2. Whilst all three of these grounds are established questions of law, we are not satisfied that the tenant has made out any error on the Tribunal's part in relation to any of them. Nor are we satisfied that there are any other circumstances justifying leave.
3. The tenant did not provide a sound recording or a transcript from the proceedings on 28 March 2025 and so was unable to direct us to any part of the proceedings to demonstrate any irregularities in procedure. Further, as contended by the landlord, the adjournment was actually in the tenant's favour by providing time for him to pay the arrears rather than making a termination order, as the Tribunal had found that the grounds existed for doing so.
4. There was no failure on the part of the Member to take into account the tenant's assertion that the landlord owed him money. The Member specifically noted that assertion and found it irrelevant.
5. There is also nothing to suggest that the landlord was interstate at the time that the application was lodged and the issue of Federal jurisdiction does not arise in this case.
6. For the purposes of paragraph [60] below, these submissions also do not form a basis for finding that the decision was not fair and equitable or against the weight of the evidence. The tenant did not provide any further evidence on appeal.

1. Order 2 of 28 March 2025, took notice of a signed agreement between the parties for the tenant to pay his rental arrears in instalments. As acknowledged by the Member in the written reasons, the repayments which had been agreed were above the Tribunal's jurisdictional limit of $15,000 (and so consent orders could not be entered; s59 NCAT Act). Therefore Order 2 did not constitute, nor did it purport to constitute, a money order made by consent. It is undisputed that the agreement was signed, although the tenant contends that he signed the agreement under duress.
2. Under s80(2) of the NCAT Act, an internal appeal may be made in the case of (a) an interlocutory or (b) any other kind of decision. Therefore, in order to make an internal appeal, the order which is appealed must be a decision as defined in the NCAT Act.
3. Section 5 of the NCAT Act sets out a broad definition of decision:

5 Meaning of "decision"

(1) In this Act, decision includes any of the following -

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.

1. However, Order 2 does none of these things.
2. Both of the parties and the Tribunal were aware that the landlord sought only a termination order in the proceedings, not a money order. Reading Order 2 in the context of the written reasons (see further The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 at [122] - [139]) it is clear that the Tribunal was aware that it would not have jurisdiction to make an order to pay more than $15,000 and so was merely acknowledging the signed agreement between the parties. The landlord's clarification that the agreement had been recorded on the conciliation sheet in the hearing room and that neither party had a copy underlined the importance for the Tribunal to have done so. Order 2 acknowledged for the record that the parties had signed a written agreement and the terms of that agreement. It had no other effect. Accordingly there is no internal appeal available in relation to this order.
3. Even if there were, for the reasons set out in paragraphs [47] to [52] we would not find that the tenant had been denied procedural fairness or that there were grounds for granting leave to appeal.
4. Accordingly to the extent required, leave to appeal is refused and the first appeal is dismissed.

1. On 6 May 2025 the Tribunal made the following orders:

1. The Tribunal makes an order under the Residential Tenancies Act 2010 terminating the residential tenancy agreement immediately, as the tenant has breached the agreement by failing to pay rent or charges.

2. The Tribunal makes a finding under section 89(5) of the Residential Tenancies Act 2010 that the tenant has frequently failed to pay rent or water usage charges on time.

NOTE: if a finding under s 89(5) that the tenant has frequently failed to pay rent has been made a warrant for possession may be issued even if the tenant has paid all rent, water usage charges or utility charges owing or complied with a repayment plan.

3. 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.

4. The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 11 May 2025.

5. The tenant is to pay the landlord a daily occupation fee at the rate of $157.14 per day from the day after the date of termination, 7 May 2025, until the date vacant position is given.

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

1. In the written reasons for decision, the Tribunal noted that the landlord had made a termination application for non-payment of rent but no arrears were sought as the landlord was seeking arrears in excess of the Tribunal's jurisdiction and would pursue those arrears elsewhere. It was not disputed that no rent had been paid since 1 July 2024, but the tenant said this was because the landlord owed him money as compensation for alleged breaches of the tenancy relationship by the landlord. Essentially, the tenant claimed that the rent owing should be cancelled out by the money owing to him as compensation, including a significant emotional distress claim. The Tribunal noted that no order for such compensation had been made in any court.
2. The Tribunal noted that the tangled issues raised by the tenant in an attempt to prevent the matter from proceeding did not impact on the question as to whether the residential tenancy agreement should be terminated for rent arrears. The Tribunal was satisfied that the notice of termination served on 10 February 2025 was valid. It was served when the tenant was 237 days in arrears. The Tribunal was satisfied that the tenant had not paid rent since 1 July 2024. Any other alleged breaches were unrelated to the termination application and were not before the Tribunal for consideration in that matter. The Tribunal was satisfied that the breach, being the failure to pay rent, was sufficiently serious to justify termination. The Tribunal was satisfied that nothing in the first appeal (see above) affected the Tribunal's power to terminate the tenancy. The Tribunal was also satisfied that an order could be made under s 89(5) of the RTA that the tenant had frequently failed to pay rent on the basis of the ledger given no rent had come in since 1 July 2024.
3. The Tribunal decided to terminate the tenancy immediately. The tenant had asked for a month to vacate the premises. The Tribunal considered the discretion in relation to the suspension of possession and factored in the interests of the landlord who had been without rent since 1 July and a tenant who said he needed time to vacate alongside his partner who was 28 years old. The landlord had been pursuing termination for non-payment of rent for some time. The tenant was not taken by surprise by these developments. Given the competing interests, the Member was swayed by the financial exposure of the landlord and suspended the order for possession for five days which she considered to be relatively long given the seriousness of the breach. In the Tribunal's view it was sufficient time in all the circumstances to allow the tenant and his partner to move out.

Summary of the tenant's written and oral submissions in the second appeal

1. The tenant contended that the orders of 6 May 2025 were contradictory to the order made by Member Campbell on 6 December 2024 which had declined to make a termination order as the tenant had filed an appeal listed for hearing on 5 March 2025. He had told the Member at the hearing on 6 May 2025 that there was an appeal in progress but the Member had told him that the proceedings had to end.
2. He further contended that he had been denied procedural fairness in being given the minimum time to vacate in order to avoid the new legislation coming into force on 19 May 2025
3. The tenant submitted that he was denied procedural fairness because the hearing on 6 May 2025 was a follow up hearing to the conciliation hearing on 28 March 2025 and the parties were not prepared to put and prepare evidence and submissions before the Tribunal. The parties had not been seated at the bar table but had remained in the general seating area of the hearing room while the Member was conducting the hearing. He had further been denied procedural fairness in that the Tribunal issued orders to come into effect quickly, purportedly to avoid the new tenancy legislation coming into effect on 19 May 2025.
4. The tenant also sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence for the same reasons.
5. The tenant sought to have all of the orders set aside and sought a compensation order for the alleged avoidance of the new tenancy legislation on the part of the Tribunal. The tenant further sought orders regarding investigation of the procedures undertaken by the Tribunal more generally.
6. The tenant confirmed that he had not provided a sound recording or transcript of the hearing on 6 May 2025 to the Appeal Panel.
7. At the Appeal hearing the tenant confirmed that he had not paid rent since 1 July 2024.

Summary of the landlord's written and oral submissions in the second appeal

1. The landlord did not file a reply to the appeal in the second appeal, but did file submissions in opposition to the stay application which are equally applicable to the appeal.
2. The landlord submitted that the orders made on 6 November 2024 (which were on appeal in 2024/00310800) were for an adjournment to a date to be set by the registrar and for the service of documents. On 6 December 2024, Member Campbell would not have been able to proceed, as the provision of evidence in the stipulated time frame was under appeal. On 6 May 2025, the Member had considered the matters which had been appealed, being the adjournment and the payment plan, and found that they were not relevant to the issue which was before her, being whether a termination order should be made. The Member took into account the documents which the landlord had handed up, which had previously been provided to the Tribunal on 28 March 2025 and which the tenant was aware of, and terminated the agreement.
3. The landlord confirmed that the only order which had been sought in the proceedings was the termination order.
4. There was no denial of procedural fairness as claimed by the tenant. The tenant had been granted an adjournment of the proceedings, despite all the evidence being available at the first hearing on 28 March 2025. The required evidence was provided to the Member on 28 March 2025.
5. The new legislation had no effect on the decision handed down on 6 May 2025 as there were no changes relating to a breach of an agreement due to frequent failure to pay rent. The Member had correctly identified the statutory tests for the termination order. The seating arrangements at the hearing were irrelevant to the outcome. The Member had applied the relevant legal tests and the tenant had not provided any fresh evidence. The tenant had been provided with the relevant evidence on several occasions and did not dispute the fact that rent had not been paid.
6. The rent increase was a separate matter to the amount of arrears which the tenant owed and the tenant needed to lodge a separate application to determine any amount owed. The evidence which the landlord had provided was sufficient to apply the appropriate legal tests for breach of s 89(5) of the RTA. The tenant, by repeated appeals, had essentially not allowed himself the opportunity to present evidence. Further he had prevented justice being delivered to the landlord.

1. The first issue to consider is which of the orders made on 6 May 2025 was an appealable decision, and if so, on what basis it may be appealed.
2. Order 1 was the termination order under s 89(5) of the RTA_._ This order gives permission to terminate the tenancy and is a decision in accordance with s 5(1)(a) of the NCAT Act.
3. Both parties have confirmed that a warrant of possession has been executed and the tenant has been evicted from the premises. Clause 12(2)(b) of Sch 4 to the NCAT Act provides that an internal appeal against a CCD decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if it is an appeal against an order of the Tribunal for the termination of a tenancy under the RTA and a warrant for possession has been executed in relation to the order. As a result, we cannot grant leave to appeal against the Tribunal's termination order because, on the basis of the oral submissions made through the course of the proceedings, a warrant for possession has been executed. For the reasons set out below, we have determined that the tenant has not demonstrated any failure by the Tribunal to afford procedural fairness in the making of the termination order.
4. Order 2 sets out the Tribunal's finding which forms the basis for the termination order in Order 1. For similar reasons to Order 2 in the first appeal, it does not meet the definition of a 'decision' in s 5 NCAT Act (see paragraphs [56] - [58] above) and is not subject to appeal.
5. Order 3 gives the landlord vacant possession (the order for possession), Order 4 suspends possession until 11 May 2025 (the suspension order) and Order 5 determines the daily occupation fee (the order for the occupation fee). Order 6 allowed the landlord to request the relisting of this application to determine the occupation fee owing, within 60 days from the date of possession (the relisting order). These orders constitute appealable decisions under ss 5(1)(a), (b) and (e) of the NCAT Act.
6. The tenant has also challenged the order for possession, the suspension order the order for the occupation fee and the relisting order (the remaining orders) which are not subject to cl 12(2)(b) of Sch 4 to the NCAT Act. We are required to consider whether the appeal should be allowed on a question of law or whether leave to appeal should be granted in relation to those orders. In relation to those orders, we have determined that there is no basis to allow the appeal on a question of law and that leave to appeal should not be granted.

Should the appeal be allowed on a question of law in relation to the termination order?

1. In the Notice of Appeal the tenant contended that he had been denied procedural fairness on several bases.
2. Whether the decision-maker has failed to accord procedural fairness has been found in many cases to constitute a question of law; see Craig v South Australia (1994/5) [1995] HCA 58; 184 CLR 163 (at p170); In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at p 351) and Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) (at p 385 [202]).
3. In Donohoe at [39] Basten JA overturned an Appeal Panel's conclusion that a denial of procedural fairness did not raise a question of law:

... The conferral of jurisdiction upon the Tribunal is conditioned by an obligation to accord each party procedural fairness. To deny that a ground asserting that the Tribunal has exceeded its legal powers raises a question of law is untenable, both as a matter of principle and authority.

1. As noted by Basten AJ in Donohoe at [36] - [37], the NCAT Act specifically requires the Tribunal to conduct its enquiries and inform itself subject to the rules of natural justice: s38(2). The Tribunal is further required to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c).
2. In order to successfully challenge the termination order, the tenant must demonstrate that the Tribunal failed to afford procedural fairness in relation to the termination order.
3. The tenant contended that he had been denied procedural fairness because the Tribunal made the termination order and did not adjourn the proceedings in light of the appeal which was due to be heard. He claimed that this was inconsistent with the orders which had been made in previous proceedings on 6 December 2024, when Member Campbell had adjourned the proceedings in order for the appeal to be heard.
4. The circumstances in the previous proceedings are distinguishable from the present proceedings. In those proceedings, the orders which were under appeal related to the timetable for providing documents. In those circumstances the hearing on 6 December 2024 could not proceed until documents were exchanged.
5. Here, the Tribunal was aware that there was an appeal pending and noted in the written reasons that the orders under appeal were the adjournment order and the payment plan noted in the orders of 28 March 2025. The Member noted that the stay of the orders had been reversed and found that the issues which had been raised by the tenant, including the appeal points, were irrelevant to the statutory tests to be applied to the termination order which was being sought by the landlord. There is no error apparent in that finding and the tenant has not demonstrated any denial of procedural fairness in the Tribunal proceeding to make the termination order on that day.
6. The tenant further contended that he was denied procedural fairness because the hearing on 6 May 2025 was a follow up hearing to the conciliation hearing on 28 March 2025 and the parties were not prepared to put and prepare evidence and submissions before the Tribunal. There is no suggestion that the tenant was unaware of the proceedings or that the landlord had sought a termination order. He had acknowledged his failure to pay rent since 1 July 2024 and had been through a previous termination process. He was also aware of his failure to comply with the payment agreement which had been signed at the previous hearing. The tenant also did not provide a copy of the sound recording or transcript by which to show when or how the Tribunal had failed to accord procedural fairness. Accordingly, regardless of how the parties were seated during the hearing, there is insufficient evidence to demonstrate any procedural fairness failures on the Tribunal's part in conducting the hearing or making the termination order.

Should the appeal be allowed on a question of law in relation to the remaining orders?

1. The tenant also contended that he had been denied procedural fairness in relation to the suspension order because the Tribunal had deliberately given only five days in which to vacate, allegedly in order to circumvent the changes in the RTA which were scheduled to commence on 19 May 2025.
2. Regardless of whether this is an allegation of denial of procedural fairness, or of another type of bad faith on the part of the Tribunal, it is untenable. The existing termination provisions applied to the termination notice issued on 10 January 2025 irrespective of the date that the suspension order expired. Further, the provisions under s89 of the RTA for termination due to non-payment of rent have not changed in the new legislation.
3. The Tribunal gave clear and sensible reasons for a relatively short suspension period. Under s 114 of the RTA, the Tribunal is required to have regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. The Tribunal took into account that the landlord had been without rent since 1 July 2024 and that the tenant had said he needed time to move out alongside his partner. The Tribunal found that the tenant would not be surprised by the termination considering the length of time that proceedings had been ongoing and was swayed by the financial exposure of the landlord to give five days suspension. There is no error apparent in this reasoning.
4. There is no other discernible question of law raised in relation to the remaining orders.

Has the tenant established grounds for leave to appeal in relation to the remaining orders?

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the CCD pursuant to s 80(2)(b) of the NCAT Act only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

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

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 to the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:

... where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. The Appeal Panel in Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] noted the following when considering whether a decision was fair and equitable:

... whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness.

1. With regard to whether the orders were not fair and equitable, in the Notice of Appeal the tenant reiterated the procedural fairness contentions which have been considered above. For the same reasons as set out in paragraphs [93] - [100] above, the tenant has not demonstrated that the decision on the remaining orders was not fair and equitable.
2. The Appeal Panel in Collins v Urban at [77(2)] noted the following when considering whether a decision was against the weight of evidence:

The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach.

1. Regarding whether the remaining orders were against the weight of the evidence, the tenant repeated the submissions regarding his understanding that the hearing was not assigned for a termination hearing and the parties did not have any documents to hand up. The landlord countered that they had provided the rent ledgers and the residential tenancy agreement such that the Tribunal could make the orders on 6 May 2025. The tenant has not shown that the evidence so much as leans in his favour, much less that it would preponderate against the conclusion that the Tribunal reached in making the remaining orders.
2. The tenant did not provide any new evidence and has not demonstrated that significant new evidence has arisen on which to base an application for leave to appeal.
3. Accordingly the tenant has not established any grounds for finding that he has suffered a substantial miscarriage of justice and we do not need to consider whether the discretion to grant leave should be exercised.

In the event that a warrant for possession has not been exercised, are there grounds for leave to appeal the termination order?

1. For the same reasons as we have found that there was no basis to allow the appeal on the question of law as to whether the tenant had been denied procedural fairness, we also find that the tenant has not established that the decision was not fair and equitable.
2. The tenant's remaining contentions have been considered above and also do not form grounds for leave to appeal. Accordingly, even if a warrant for possession had not been exercised, we would not grant leave to appeal.
3. Accordingly, to the extent required, leave to appeal is refused and the second appeal is dismissed.

1. The tenant sought various orders for compensation for and investigation of the Tribunal's conduct of the hearing. At the hearing we noted that orders of this kind were beyond the scope of the appeal. For the sake of completeness, in determining an internal appeal, s81(1) of the NCAT Act provides that 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.

1. Under s81(2) of the NCAT Act, the Appeal Panel may exercise all the functions that are conferred or imposed by NCAT 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.
2. Although the Appeal Panel's power to make orders are not limited to those set out in s 81(1), to extend them to investigative or compensatory powers would lie outside the purview of the types of orders envisaged in s 81. In any event, even if the Appeal Panel did have such powers, in light of the determinations we have made in these proceedings, this would not be the context in which they might be exercised.

(1) To the extent required, leave to appeal is refused.

(3) To the extent required, leave to appeal is refused.

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.