El Rifi v NSW Land and Housing Corporation

1. This is an appeal by a social housing tenant from a decision of the Consumer and Commercial Division of the Tribunal to terminate the tenancy immediately under s 90 of the Residential Tenancies Act 2010 (NSW) (RTA). The order for possession was suspended until 23 June 2025. Subsequently, a stay of those orders was granted by Principal Member Blake SC until further order or finalisation of the appeal, whichever came first.
2. The tenant has applied for a short extension of time in which to lodge the appeal (the appeal was lodged 7 days out of time). The landlord does not object to the grant of the required extension of time. In view of the relatively, short period of extension required and the merits of the appeal, as appears below, we are prepared to grant the necessary extension of time.
3. For the reasons set out below, we have decided that the appeal should be allowed, the orders for termination and possession should be set aside and the application for such orders should be remitted for redetermination by the Tribunal, differently constituted.
4. Background facts and matters
5. The landlord and the tenant entered into a residential tenancy agreement on 18 May 2017 in relation to premises in Yagoona in Western Sydney. The tenant lives alone in the residential premises. He is 50 years old.
6. Proceedings for termination of the tenancy were commenced in the Tribunal by the landlord on 14 August 2024 following an incident outside the residential premises in the evening of 27 July 2024. The incident involved the tenant, one of the occupiers of a neighbouring property, Mr Fadi Onjeh, and his two brothers. The incident was also witnessed by Fadi Onjeh's girlfriend.
7. A knife was involved in the incident. The tenant disputed that it was his knife. The police arrived at the scene not long after the incident occurred. One of the fingers of the occupier was cut during the incident, along with a minor laceration to his left knee. The tenant also sustained an injury to his hand during the incident, as well as some facial injuries. The occupier and the tenant were taken to different hospitals for treatment.
8. Following investigations by the police, including interviews of witnesses, the tenant was charged with having committed two criminal offences, namely, being armed with intent to commit an indictable offence (s114 (1) (a) of the Crimes Act 1900 (NSW), and assault occasioning actual bodily harm domestic violence related (s 59 (1) of the Crimes Act 1900 (NSW)). A trial of those charges is yet to take place. At the appeal we were told that at a recent hearing in the criminal proceedings the charges have been set down for trial in March 2026.
9. In the landlord's application to the Tribunal the following was set out as the reasons for the orders sought:

"On the 27th July 2024 at approximately 9:15 p.m., neighbouring female (Witness) exited [address given] to move her car. The [tenant] approached her and accused her of poisoning trees outside the [tenant's] property. The Witness called Victim 1, he came to her assistance. The [tenant] and Victim 1 engaged in a verbal argument concerning the alleged poisoned trees. Hearing the argument, Victim 2 and Victim 3 also exited the [address given] property. Victim 2 told the [tenant] to leave Victim 1 alone and go back inside. The [tenant] pushed Victim 2 with his left hand. The [tenant] then pulled out a silver bladed flick knife with a wooden handle from his right pants pocket and lunged towards Victim 1. As a result, all three victims grabbed the [tenant] attempting to wrestle the knife out of his hand. Victim 1 sustained a number of lacerations to his right hand during this. During the scuffle, the accused managed to free his arm and slashed the front of Victim 1's knee causing a minor laceration. The Victims eventually managed to pull the knife from the accused hand and restrained him whilst Police were called. The [tenant] was charged with being Armed with Intent, Assault Occasioning Actual Bodily Harm. He is currently Bail Refused..."

1. At a hearing in the Tribunal on 19 February 2025 the hearing was adjourned to a date to be fixed and directions were made for the provision by the parties of evidentiary material, including witness statements, and submissions. The orders made on that date included the following statement:

".....On the next occasion the matter will be listed for final hearing to determine whether the tenancy should be terminated under s 90 (1) (b) of the Residential tenancies Act. The landlord concedes the tenant is a person under a disability for the purpose of s154D (3) (b). Accordingly, if the tenant establishes termination is likely to result in him suffering undue hardship termination will be discretionary under s154D (3) (b) or if the tenant establishes there are other exceptional circumstances that justify the termination order not being made termination is discretionary in the alternative under s154D (3) (c). If undue hardship or exceptional circumstances are not established, termination will be mandatory if the alleged breach is established. If termination is discretionary as a result of s154 D (3) (b) or (c) applying discretionary matters to consider will include those set out in s154E. Parties attention is drawn to the provisions of the Residential Tenancies Act mentioned in this paragraph and should ensure they address the relevant issues in their evidence.

The tenant is encouraged to immediately seek advice from the Tenants Advice Advocacy Service...."

1. Section 90 of the RTA, relevantly, provides:

90 Serious damage or injury by tenant or other occupant

(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted -

(a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others), or

(b) injury to the landlord, the landlord's agent, an employee or contractor of the landlord or the landlord's agent, or an occupier or person on neighbouring property or premises used in common with the tenant.

(a) property adjoining or adjacent to the residential premises, or

(b) property owned by the landlord in the general locality of the residential premises.

1. Section 90 (1) contains a statutory discretion for the Tribunal to terminate the tenancy.
2. On the other hand, section 154D of the RTA makes provision for a termination order under s 90 (1) of a social housing tenancy agreement to be mandatory in the circumstances prescribed as follows:

154D Tribunal required to make termination order in certain circumstances

(1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if -

(a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1)(b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900, or

(2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if -

(a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90(1) (and subsection (1) of this section does not apply), or

(b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and

(c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.

1. There was no suggestion that the injury suffered by Fadi Onjeh amounted to grievous bodily harm. Hence, there was no suggestion that s154D (1)(a) was applicable.
2. By reason of s154D (2), a termination order was mandatory if the Tribunal was satisfied of the matters set out in s 90 (1), subject to the operation of s154D (3) (b) and (c) [our emphasis]. As will become apparent, the Tribunal erred by not considering the operation of s154D (3) (c).
3. Section 154E provides:

154E Exercise of discretion to make termination order

(1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following -

(a) the effect the tenancy has had on neighbouring residents or other persons,

(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c) the landlord's responsibility to its other tenants,

(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

(2) This section does not limit any other matter that may be considered by the Tribunal under this Act.

The hearing on 20 May 2025 and the Tribunal's decision

1. The tenant was unrepresented at the hearing on 20 May 2025.

1. As directed, both parties provided evidentiary material before the hearing on 20 May 2025. The landlord also provided written submissions, as directed. The tenant did not provide any document identified as written submissions.
2. No oral evidence was given at the hearing. There was no request from either party for cross examination.
3. We were not supplied with a transcript of the hearing (or any part of it).
4. As appears from the Tribunal's reasons, the landlord's evidence (marked Exhibit A) included witness statements obtained from the NSW Police, namely statements from Fadi Onjeh, Rami Onjeh, Gabi Onjeh, Senior Constable Worthy and Constable Giestas, and a statement from Isabelle Leigh (the girlfriend of Fadi Onjeh). The landlord's evidence also included a Facts Sheet from the NSW Police in respect of the criminal charges. There were also photographs of the injuries said to have been inflicted by the tenant.
5. As also appears from the Tribunal's reasons, the tenant's evidence (marked Exhibits 1 to 6), included, amongst a number of other documents, photographs, a single page handwritten by the tenant in which he claimed that what the witnesses told the police about what happened on 27 July 2024 was untrue, two further unsigned statements of the tenant and a report from a psychologist about the tenant dated 15 August 2024.
6. At the hearing of the appeal, we were not supplied with the whole of the contents of Exhibit A and Exhibits 1 to 6.
7. It was clear from the Facts Sheet and the statements of Senior Constable Worthy and Constable Giestas that, with the tenant's consent, the police officers viewed and obtained CCTV footage of the incident from a CCTV camera located on the tenant's premises. No footage from this camera was presented to the Tribunal in the primary proceedings (or on appeal). Senior Constable Worthy's statement included:

"12.... I viewed the footage which showed the incident. The footage shows the altercation however you are unable to see the knife." [Our emphasis]

1. The Facts Sheet included the following about this footage:

"Police viewed the CCTV which captures the above events although you are unable to see a knife due to the distance and quality of the camera." [Our emphasis]

1. In its written submissions the landlord set out an account of the above statements. It submitted that based on the evidence before it the Tribunal should be satisfied on the balance of probabilities there had been a "breach" of s 90 (1) (b) (we note that this section does not make provision for a breach). These written submissions did not contain any submissions as to whether and, if so, how injury was "intentionally or recklessly caused".
2. No reference was made to the need to apply the Briginshaw principles. We explain those principles below.
3. At this point, it is convenient to note some pertinent aspects of the evidence from the landlord's witnesses to the incident concerning, in particular, the question whether injury was caused "intentionally or recklessly".
4. As to an initial action with the knife the versions from these witnesses to the incident were not wholly consistent. Fadi Onjeh stated that the tenant lunged with the knife towards his torso, Rami Onjeh stated that the tenant swung the knife in a slashing motion at Fadi Onjeh, Gabi Onjeh and Isabelle Leigh made no reference to any such action taken toward Fadi Onjeh. No witness to the incident suggested that injury had been inflicted to Fadi Onjeh during an initial action with the knife.
5. As to the injury to Fadi Onjeh's hand, according to the version of events from the brothers, this appears to have occurred whilst Fadi Onjeh was attempting to obtain control of the knife, with the assistance of his brothers. Gabi Onjeh stated that during this process he could see that Fadi Onjeh was holding the knife by the blade. Rami Onjeh stated that during this process he saw Fadi Onjeh take control of the knife with his own hands. Fadi Onjeh stated that he tried to grab the tenant's right hand which was holding the knife and whilst trying to grab it "he has cut four fingers on my left hand." Isabelle Leigh made no reference to these actions.
6. As to the injury to Fadi Onjeh's knee, Fadi Onjeh's statement indicates that this came after the injury to his hand and whilst the tenant was being held down on the footpath. He stated that during this period the tenant "moved his left hand which was holding the knife and has cut the front of my left knee." No reference to that action was made in any of the witness statements from Rami Onjeh, Gabi Onjeh or Isabelle Leigh.

"36 In summary, the landlord submits that although it is conceded that [the tenant] has a disability within the meaning of the Anti-Discrimination Act 1977, he has failed to establish this disability would result in hardship that is excessive in the circumstances or that any exceptional circumstances exist that would enliven section 154D(3)(b) of the RTA."

1. The landlord's written submissions then made submissions about the operation of the discretionary factors in s154E, in the event that the Tribunal found that "section 154((3) (d) provisions do apply". These included submissions that the landlord was apprehensive that if the Tribunal declined to make a termination order the neighbours would continue to be in a position of real risk and the effluxion of time should not have the effect of ameliorating the severity of the breach especially given the tenant's "propensity for violent crime and his negative fixation on his neighbours."

1. Following an outline, an account of the hearing, the relevant law, and an outline of the parties' evidence, the Tribunal made reference to the parties' submissions (at [24]-[32]).
2. The Tribunal referred (at [29]-[32]) to the tenant's oral submissions and said that most of these referred to claims he was targeted by people related to the Assad regime and that the tenant had made reference to (1) poisoning the tenant's dogs and chickens and a tree on the premises, (2) making threats to him, (3) blocking his driveway, (4) hacking his computer, (5) accessing his bank account, and (6) involvement in the 2020 motor vehicle accident. The Tribunal then stated (at [32]):

"Other than those allegations, there was no mention of any undue hardship or exceptional circumstances beyond the claim by the tenant that he is on Centrelink payments because of the 2022 motor vehicle accident. The matters set out in s154E were not addressed and the landlord's contentions as to the tenant's circumstances were not disputed by him."

1. Having, with respect, correctly, identified the issues (at [34]), although without specific reference to the operation of s154D(3)(b) and (c), the Tribunal turned to an assessment of the evidence and the question whether s 90 applied. This consisted of the following:

36 As there was no cross-examination, the Tribunal must decide who to believe, based on the documents that form the evidence in these proceedings.

37 The Tribunal prefers the version of events for which the landlord contended for the following reasons. First, the police officers who attended the scene of the incident are considered competent, unbiased experts whose assessment can be considered reliable. Secondly, the weight of the evidence favours the victim's version of events: the tenant's version uncorroborated (sic).

38 Based on all the evidence, and the submissions that have been made for both parties, the Tribunal makes the following findings of fact:

(1) The tenant lives in a property at Yagoona for which he pays rebated weekly rent of $88.05 to the landlord.

(2) On 27 July 2024 there was an altercation outside those premises, during which the tenant produced a knife which he used to inflict cuts on the hand and knee of the occupier of a neighbouring property.

(3) As a result of the attendance of police officers, statements were obtained and the tenant was charged with (a) being armed with intent to commit a felony, and (b) assault occasioning actual bodily harm, domestic violence related.

Does s 90 apply?

39 While the subject incident appears to have occurred on the footpath in front of the residence of the tenant and/or the residence of his neighbours, that is considered neighbouring property, falling within the definition of those two words contained in s 90 (5) (a) of the RTA.

40 It would create a perverse situation if an incident was caught by s 90 if it occurred on either the property where the tenant lives, or the property where his neighbours live, but not immediately outside either of those properties. The footpath is both adjoining and adjacent to the residential premises occupied by the tenant. It is clear the location of the incident satisfies the proximity test suggested by Lesniewski.

41 In view of the findings of fact set out above, the landlord has satisfied the Tribunal that s 90 of the RTA applies in this instance.

42 Considered in isolation, the effect of s 90 is that the Tribunal may make a termination order by reason of s 90 (1), the Tribunal may specify that the order for possession takes effect immediately, as indicated in s 90 (2), and the landlord was entitled by s 90 (3) to commence these proceedings without giving the tenant a termination notice."

1. We note that no reference was made by the Tribunal to the Briginshaw principles, nor was any express finding made as to whether the knife intentionally or recklessly caused injury, accompanied by findings concerning how such a conclusion was arrived at.
2. The Tribunal then turned to the question whether s154D required termination. Here, the Tribunal erred in respect of the following reasoning:

"43 There would be a requirement to terminate if s154D (2) is satisfied. However, only paragraph (a) of s154D (2) applies to s 90 since the remaining paragraphs apply when the termination application is based on s 91, which relates to the use of premises for illegal purposes. Paragraph (a) only applies if the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900 (NSW).....

44 There is no evidence to suggest the victim sustained "any permanent or serious disfiguring of the person" and the police have only charged the tenant with assault causing actual bodily harm, not grievous bodily harm.

45 As a result, s154D (2) does not require termination and it is therefore not necessary to consider s154D (3).

46 For the sake of completeness, if it were necessary to consider s154D (3) (b), there would be two matters requiring consideration. First, whether the tenant has a disability, which was conceded by the landlord. Secondly, whether there would be undue hardship if the tenancy were to be terminated.

47 It is noted that it is the tenant who bears the onus of proof, meaning that it is he who needs to satisfy the Tribunal that he would suffer undue hardship if his tenancy were to be terminated. A finding of undue hardship cannot be justified in this instance for the following reasons. First, there is no evidence that would warrant a finding of undue hardship. Secondly, no submissions were made in support of that issue by the tenant. Thirdly, that was despite the Tribunal providing the tenant with a warning on 19 February 2025. Fourthly, the Tribunal is unable to discern any basis for such a finding."

1. As expanded upon below, it is apparent that this reasoning contains the following errors concerning the construction of relevant aspects of s154D (2) and (3), namely that:

(1) Subsection 154D (2) did not require termination because paragraph subsection 154D (2) (a) only applied if the injury constituted grievous bodily harm.

(2) As a consequence, it was not necessary to consider the operation of s154 D (3).

(3) If it were necessary to consider s154D (3), the only two matters to consider were those arising under s 154D (3) (b), namely whether the tenant has a disability and whether there would be undue hardship if the tenancy was to be terminated.

1. Having concluded that an order for termination was not mandatory, the Tribunal addressed the question of the application of s154E and the discretion generally. The Tribunal concluded that the relevant considerations clearly favoured the Tribunal exercising its discretion in favour of termination (at [55]).

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

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

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

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

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

1. We have identified from the amended Notice of Appeal lodged on 11 July 2025 that the tenant advances the following six grounds of appeal:

(1) The Tribunal erred in its application of s 90 by its reliance upon untested and uncorroborated evidentiary material and the absence of reliance upon the presumption of innocence in respect of criminal charges that had not yet been determined and provocations from the neighbours in the broader context of political hostility (Ground 1).

(2) The Tribunal erred in concluding that injury occurring on the footpath outside the residential premises satisfied the element of s 90 (1) (b) that the injury occur to an occupier or person on "neighbouring property" (Ground 2).

(3) The Tribunal erred in failing to consider the relevant considerations of undue hardship and exceptional circumstances under s154D (3) (b) and (c) of the RTA (Ground 3).

(4) The Tribunal erred by incorrectly exercising the discretion under s154E of the RTA (Ground 4).

(5) The Tribunal erred in failing to afford procedural fairness to the tenant by the exclusion of additional evidence and by failing to recognise that the ability of the tenant to present his case was significantly impaired (Ground 5).

(6) There was significant new evidence now available that was not reasonably available at the time of the hearing, namely that the tenant's neighbour has moved to another location and the neighbouring premises have been abandoned for a number of months (Ground 6).

1. As will become apparent, Ground 1 raised a question of law, Ground 2, potentially, raised a question of law and Ground 3 also raised a question of law.
2. Whilst the amended Notice of Appeal includes an application for leave to appeal, as appears below, it is unnecessary for us to consider the question of the grant of leave to appeal in view of the errors of law we consider were made by the Tribunal in relation to Grounds 1 and 3.

Submissions and other material presented on the appeal

1. At the hearing of the appeal the tenant relied upon a paginated bundle of documents (305 pages) which was marked as MFI 1. In addition to evidentiary material concerning the tenant's stay application and application for an extension of time in which to lodge the appeal, the bundle contained some new evidentiary material that was not presented to the Tribunal below. It has not been necessary for us to have regard to such new material or to the evidentiary material concerning the tenant's stay application.
2. At the hearing of the appeal, the landlord presented a paginated bundle of documents (193 pages) which was marked as MFI 2.
3. Oral submissions were made at the hearing of the appeal by Ms Sarfraz, solicitor, who appeared for the tenant and by Ms Walshe, solicitor, who appeared for the landlord.

Ground 1- consideration - error in relation to proof of the elements of s 90 (1) (b) of the RTA

1. In connection with the tenant's criticisms of the approach the Tribunal took to proof of the elements of s 90 (1) (b) of the RTA, at the hearing of the appeal we raised with the parties the question whether the Tribunal had erred in failing to apply the Briginshaw principles. Ms Sarfraz submitted that the Tribunal had erred in failing to do so. Ms Walshe, whilst accepting that the Briginshaw principles applied, submitted that the Tribunal had complied with the principles.
2. It is well established that in a civil case such as this the standard of proof remains upon the balance of probabilities and not proof beyond reasonable doubt. Whilst the Tribunal did not expressly refer to the standard of proof, there is no reason to doubt that it applied the well-known standard of proof on the balance of probabilities.
3. However, in this case, where the allegation made in respect of the operation of s90 (1) (b) was an allegation of what would amount to criminal conduct, the Briginshaw principles were, in our opinion, clearly applicable.
4. The famous remarks by Dixon J in Briginshaw [1938] HCA 34; (1938) 60 CLR 336 needed to be applied, namely (at 362-3):

"..... [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood and occurrence of the given description, or the gravity of the consequences flowing from a particular finding a considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.... It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or " with certainty".... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, the question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues.... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."

"In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both the correct and just conclusion."

1. For a recent illustration of an expression by the Tribunal that it was applying the Briginshaw principles, described by Bell CJ as sound and unimpeachable, see Daynes v I-MED Central Queensland Pty Ltd; I-MED Central Queensland Pty Ltd v Daynes [2025] NSWCA 150 at [104]- [105].
2. We have set out above the totality of the Tribunal's reasoning concerning proof of the elements of s 90 (1) (b). As we indicated, Ms Walshe submitted the Tribunal did apply the Briginshaw principles, bearing in mind the level of seriousness of the allegation, which was not, for example, an allegation of intentionally causing grievous bodily harm and the Tribunal arrived at the required level of satisfaction.
3. We do not agree. The Tribunal made no reference to the Briginshaw principles and no submission was made to the Tribunal that these principles were applicable. Nor did the Tribunal use any of the kinds of language that tend to show that the principles were applied, including reference to the nature of the allegation giving rise to the need to give consideration to the particular process by which the required level of satisfaction was to be achieved.
4. Further, in the application of the Briginshaw principles, having regard to the evidentiary material presented to the Tribunal to which we have referred in paragraphs [20]-[24] and [27]-[30], it would be reasonable to expect that there would have been reference to considerations such as:

(1) Whether relevant injury was inflicted accidentally and, if not, how it was found to be intentional or reckless.

(2) The absence of independent corroboration of the landlord's non-police witnesses, including from the presentation to the Tribunal of the CCTV footage showing the actions of the parties (even though the knife could not be seen).

(3) Relevant differences in the versions of the landlord's witnesses.

(4) The police were not witnesses to the incident and their assessment of events in the Facts Sheet for the purpose of the charges was of limited utility, at best, for proof of the elements of s 90 (1) (b).

1. Accordingly, in our view, the Tribunal erred in failing to apply the Briginshaw principles to the question whether the elements of s 90 (1) (b) had been established. We uphold Ground 1.
2. This error alone is sufficient to allow the appeal, set aside the orders for termination and possession and remit the proceedings to the Tribunal for redetermination. Nevertheless, we see some utility in proceeding to determine, at least, Grounds 2 and 3 of the remaining grounds of appeal.

Ground 2 - alleged error concerning "neighbouring property" in s 90 (1) (b)

1. The tenant submitted that the Tribunal erred by "overstretching the definition of neighbouring property" in s 90 (1) (b). This submission was not developed beyond this contention. It was not made clear whether the alleged error was a question of construction of the provision, the meaning of any word(s) or an error of fact in the application of the expression "neighbouring property".
2. The Tribunal referred to and applied the definition of "neighbouring property" in s 90 (5) (a) of the RTA (set out above). It is notable that this definition does not expressly confine the expression to private property or to a neighbouring area in which people live.
3. The Tribunal also referred to the decision of the Appeal Panel in NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185 in which the Appeal Panel recognised that "neighbouring property" could include a roadway near to the tenancy premises depending upon the facts concerning proximity. We note that in Lesniewski the Appeal Panel made reference to the Macquarie Dictionary definition of "adjacent", one of the words used in s 90 (5) (a), being "lying near, close, or contiguous; adjoining; neighbouring".
4. We do not discern any error of law or fact in respect of the Tribunal's conclusion that the footpath in issue was "neighbouring property". Accordingly, Ground 2 is rejected.

Ground 3 - whether termination was mandatory or discretionary - error in the construction of s154D

1. We have referred above to the errors made by the Tribunal in respect of the construction of s154D (2) and (3): see at paragraphs [38] and [39].
2. Upon the correct construction of these provisions the Tribunal ought to have concluded that a termination order was mandatory pursuant to s154D (2) (a) unless the terms of either s154D (3) (b) or (c) were satisfied.
3. As a consequence of the Tribunal's error of construction, the Tribunal failed to consider whether the terms of s154D (3) (c) were satisfied. As to this, the Tribunal appears to have acknowledged that various matters had been advanced in respect of both undue hardship or exceptional circumstances, including the matters referred to in paragraph [31] of the reasons (see at [32], first line). However, the Tribunal did not proceed to address the question whether these amounted to exceptional circumstances.

1. It is unnecessary for us to deal with the remaining grounds of appeal concerning the exercise of the discretion to terminate, alleged procedural unfairness and the tenant's wish to rely upon new evidence.
2. It will be a matter for the Tribunal upon remittal to decide upon the extent to which the tenant should be permitted to rely upon additional evidence to that admitted by the Tribunal during the hearing on 20 May 2025. Having said this, we note that, in the event the Tribunal decided that the making of an order for termination was discretionary, plainly, there is scope for evidence concerning the current risk of injury within the terms of s 90 (1) (b) having regard to any relevant events since the hearing on 20 May 2025, the current state of the mental condition of the tenant and with respect to the identity of the occupants of the relevant neighbouring property. As to the latter, we have referred to the contentions about this in Ground 6 but there was no evidence as to the actual position presented to us on appeal.
3. As to the tenant's mental condition, we have referred above to the psychological report dated 15 August 2024 that was presented to the Tribunal. We note that this report refers to the tenant's agreement to a treatment plan set out in the report and the opinion was expressed that the tenant's likelihood of re-offending was believed to be low should he be released on bail (as he came to be). There appears to be scope for further evidence about this situation in the redetermination of the landlord's application.
4. Furthermore, on the face of it, it appears to be relevant for a decision about whether the elements of s 90 (1) (b) have been established to be made with the benefit of the CCTV footage.
5. We consider it appropriate that the matter be remitted to a differently constituted Tribunal. Such an order is in the interests of justice in this case, including its appearance, in accordance with the approach to be taken to the making of such an order as set out by the Appeal Panel in Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 at - . This is because the Tribunal, as originally constituted, expressed a firm and concluded view about the merits of the landlord's case, which was adverse to the tenant.

For the above reasons, we make the following orders:

(1) An extension of time is granted until 16 June 2025 in which to lodge the appeal.

(3) The orders made by the Tribunal on 20 May 2025 are set aside.

(4) The proceedings are remitted to the Tribunal, differently constituted, for redetermination on such evidence as the parties file and serve in accordance with the directions and rules for that hearing.

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.

14 November 2025 - Para 15, first line, replace "that" with "of".

Para 37, in para 38 (1) of the quoted extract from the Tribunal's reasons for decision, replace "she" with "he".

Para 37, in para 39 of the quoted extract, first and second lines, replace "residents" with "residence".

Para 37, in para 40 of the quoted extract, fourth line, put a full stop after "tenant" and start a new sentence with "It".

Para 37, in para 42 of the quoted extract, line 3 replace "(two") with "(2)" and "(three)" with "(3)".

Para 53, in the last line of the quoted extract, change "unjust" to "and just".

Para 70, second line, change "satisfied" to "established".