Emmerson v Mission Australia - Mid North Coast

Extension of time

1. These orders were made in proceedings brought by the respondent commenced a year earlier, on 23 June 2023, in which allegations of breaches of the residential tenancy agreement relating to causing and permitting a nuisance and causing or permitting interference with the reasonable peace, comfort or privacy of neighbours was made, accompanied by particulars which referred to seven matters which had occurred over the period from 4 May 2023 to 22 June 2023. Clearly enough, the allegations were of breaches of the Residential Tenancies Act 2010 (NSW), ss 51 (1)(b) and 51 (1)(c).
2. Six of the seven matters particularised were said to be the subject of reports from the appellant's neighbours. Two of these six reports identified the relevant conduct as being the conduct of an "unauthorised occupant" of the appellant's unit. The seventh matter concerned an allegation of breach by installing security cameras without the permission of the respondent.
3. One of the seven matters was that on 24 May 2023, police were called to the appellant's unit following reports from neighbours that drugs were allegedly being manufactured and sold by the appellant. As to this, there was no allegation in the respondent's application of a breach of the Residential Tenancies Act, s 51(1)(a), which concerns the tenant's obligation not to use the residential premises or cause or permit the premises to be used for any illegal purpose.
4. The respondent's application, filed on 23 June 2023, referred to a Notice of Termination issued to the appellant on 31 May 2023. The notice of termination was not before us on appeal. Still, we assume, consistent with the respondent's initiating application, that it particularised the appellant's breaches by reference to the same seven matters.
5. There was a substantial gap in time, over a year, between the appellant's alleged breaches of her residential tenancy agreement and the hearing and orders made on 24 June 2024.
6. The appellant, too, delayed the commencement of her appeal. The appeal was lodged on about 6 November 2024, shortly after the appellant consulted with Legal Aid, NSW. At the first return date of the appeal, the Tribunal stayed the termination of the tenancy until further order or the finalisation of the appeal, whichever is earlier, conditional upon the appellant complying with the Residential Tenancies Act and the terms of the residential tenancy agreement.
7. Consequently, the appellant sought an extension of time in which to bring her appeal. The appellant provided evidence in the form of her Statutory Declaration in support of her application for an extension of time, which included evidence addressing the reasons and concerning the circumstances for her delay. The appellant also provided written submissions in support of the application for an extension of time. Those submissions addressed, at some length, the principles concerning the grant of an extension of time set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
8. At the hearing of the appeal on 28 November 2024, the respondent informed the Appeal Panel that it did not oppose the grant of the required extension of time. In these circumstances, in view of the evidence from the appellant about the delay and the strong prospects of success on appeal (as appears below), we consider that the necessary extension of time in which to lodge the appeal should be granted.

The appeal

1. Unlike the delayed progress of the proceedings beforehand, the appeal has proceeded expeditiously. Extensive written submissions and statutory declarations were provided by both parties shortly before the hearing, including the appellant's written submissions on 26 November 2024 and the respondent's written submissions in the late afternoon of 27 November 2024. Additional documentation, including a further signed statement by the appellant, was supplied to the Appeal Panel during the appeal hearing.
2. At the hearing of the appeal, the issues to be considered narrowed quite considerably, principally because of positions taken by the respondent during the course of the hearing, including its position concerning the grant of an extension of time for lodging the appeal.
3. Because of the view we have reached about the inadequacy of the reasons for decision, which was the basis for the first ground of the appeal, we do not think it necessary to determine the other grounds of appeal, which concerned procedural fairness, new evidence, factual arguments the subject of an application for leave to appeal and an appeal from what was said to be two interlocutory decisions made at the hearing on 24 June 2024.
4. As a result, it is unnecessary for us to address the procedural history and other evidentiary material presented to us in the detail that might otherwise have been required.

Relevant provisions of the Residential Tenancies Act

1. The Residential Tenancies Act, s 51(1), relevantly, provides: 51 Use of premises by tenant (1) A tenant must not do any of the following - (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, …..
2. The Residential Tenancies Act, s 87, regulates the termination of a residential tenancy for breach. That section provides: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that - (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
3. The question under the Residential Tenancies Act, s 87(4)(b) whether the breach is, in the circumstances of the case, sufficient to justify termination is a mandatory consideration requiring consideration of the circumstances of the case before the Tribunal, based on the evidence provided by each of the parties, including any relevant aspects of the tenant's circumstances such as those that inform an understanding of the breach and the effect of termination on the tenant: Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 154 at [46]-[53]; King v NSW Land and Housing Corporation [2022] NSWCATAP 165 at [29]-[37]; Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 at [15].
4. The Residential Tenancies Act, s 154E requires the Tribunal to have regard to particular matters when considering the exercise of its discretion to make a termination order; it 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.
5. The facts and matters set out in s 154E are also mandatory considerations in respect of the exercise of the discretion to terminate under s 87: see King at [40] - [44].

The Tribunal's decision at first instance

1. We address briefly an issue that arose at the appeal hearing about what, if anything, the Tribunal said about the reasons for decision and what transpired at the relatively brief final hearing at first instance on 24 June 2024. We can address this more briefly than we otherwise would have done had it been necessary to address all of the grounds of appeal. The 23 June 2024 hearing occurred in a group list following a "Notice of conciliation and hearing (group list)" sent to the parties on 28 May 2024. Both the notice of 28 May 2024 and the hearing followed the appellant's successful set-aside application of orders for termination and possession made in her absence on 10 May 2024.
2. The written orders do not mention that they were made by consent. Had the orders been made by consent, it would be expected that this would have been recorded. Nevertheless, the respondent contended in its written submissions provided in the late afternoon before the hearing of the appeal that the orders had been made by consent and, accordingly, no reasons for decision were required.
3. No such contention had been made in the respondent's previous submissions dated 14 November 2024 in response to the appellant's stay application. On the contrary, those submissions suggested that the Tribunal had provided reasons for the orders made: …. We submit that NCAT's decision, while concise, adequately addressed the core issues, including the tenant's significant anti-social behaviour and the detrimental impact on neighbouring tenants. The decision to grant vacant possession was based on established findings, including the tenant's repeated and severe anti-social behaviour over a prolonged period, and appropriately prioritised the well-being of the surrounding tenants. Therefore, we argue that sufficient reasons were indeed provided.
4. The appellant relied on a signed statement from Ms Lynch, the duty tenant's advocate from Mid Coast Tenants Advice and Advocacy Service, who appeared for the appellant at the hearing on 24 June 2024. By her statement, which was not relevantly challenged, Ms Lynch informed us that the Tribunal had not made orders by consent of the parties. Ms Godrey appeared for the respondent at the hearing on 24 June 2024, however the respondent did not tender any evidence from her as to what had transpired at the hearing that day.
5. The appellant tendered a letter from the Registry of the Tribunal to Legal Aid, NSW, dated 8 November 2024, which stated that the orders were not made by consent.
6. Regrettably, there was no sound recording and, hence, no transcript of the substantive part of the hearing that took place on 24 June 2024, including any oral reasons for the decision. The appellant provided us with a transcript of an initial part of the hearing on that occasion, which the sound recording had captured. However, this transcript concerned only a first mention of the proceedings and some preliminary exchanges before the parties left the hearing room to discuss a conciliation.
7. After some discussion at the appeal hearing, the respondent's representative informed us that the respondent did not pursue its contention that the orders were made by consent. Hence, we need not address this issue any further.
8. The eventual position of the respondent was to accept, correctly, in our view, that if reasons for the decision of the Tribunal were required (whether orally or in writing), then sufficient reasons were not given.
9. The written record of orders issued on 24 June 2024 contains no indication of the Tribunal's reasons for decision. It does not refer to the termination being for breach or identify the nature of the breach. Nor is there any reference to the mandatory or discretionary considerations involved in arriving at a lawful decision about termination.
10. The statutory obligation of the Tribunal to provide written reasons pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) was not engaged because there was never any request for such reasons as set out in s 62(2).
11. The best evidence as to what, relevantly, transpired at the hearing appears from the unchallenged statement from the tenant's duty advocate, Ms Lynch, albeit her recollection of what occurred is not comprehensive or precise, as she makes clear in her statement.
12. After referring to some of her discussions with the appellant in the period between the first mention of the matter in the Tribunal and the final hearing that day, Ms Lynch stated: 9. We went back into the courtroom and when the matter was brought back on I formally sought leave to assist [the appellant] with representation in the capacity of duty advocate. This was granted unopposed by the applicant. 10. I recall that I then made application to have neighbouring parties excluded from the room on the basis they were witnesses for the applicant and that [the appellant] was anxious and intimidated by their presence in the court room generally. I recall that the member did not make a determination about that application and wanted to firstly discuss other aspects of the matter. 11. I do not recall specifics conversations (sic) that then occurred, but I do recall that the member also refused to grant an adjournment of the matter to a formal hearing date and determined that the matter should be heard and determined there and then. 12. I recall making application to submit the references [the appellant] had obtained from her neighbours into evidence. I recall there was material on file submitted by [the respondent] against [the appellant]. I recall the member refused to accept the references from [the appellant] on the basis that, in his view, neighbours in these types of situations will form cliques or words to that effect, and as such there would be no evidentiary value to them. 13. The member did accept into evidence documents [the appellant] had produced which pertained to the domestic violence offences for which her ex-partner had been charged and some other documents of that nature. 14. I recall making submissions about the incidents of noise and nuisance being primarily because of domestic violence offending by her ex-partners and requesting the Member make orders around a specific performance order instead of termination. I recall submitting that incidents had drastically reduced since her partner had been refused bail. I also recall making submissions to the effect that there is a strong possibility she would be homeless if evicted and potentially at risk of further domestic violence if she had to go outside of the area to seek support because one of the ex-partners was prohibited by an AVO from attending Port Macquarie. 15. I recall that the Member ultimately determined that there was evidence which substantiated noise and nuisance breaches and that on that basis he determined the tenancy should be terminated. In discussing an appropriate date for the termination, I recall that the [respondent] representative advised she had been willing and conciliation discussions to accept a late October date. On that basis the Member ordered that the tenancy was terminated, and the order should be suspended until October 31, 2024.
13. In view of the unchallenged nature of this evidence and the absence of a sound recording and transcript concerning this part of the hearing, we find that, to the extent oral reasons were given by the Tribunal, at the hearing on 24 June 2024, they consisted of the following: 1. A conclusion that there was evidence that substantiated noise and nuisance breaches and that on that basis, the tenancy should be terminated. 2. A conclusion that given that the respondent accepted that the order for possession should be suspended until a late October date, the order for possession would be suspended until 31 October 2024.

Consideration of Appeal Ground 1: Adequacy of reasons

1. An appellant may appeal from a final decision of the Tribunal as of right on a question of law or with leave on other grounds: Civil and Administrative Tribunal Act, s 80(2)(b).
2. Since this is an appeal from the Consumer and Commercial Division of the Tribunal, further qualifications apply in considering any grant of leave where the appeal is based on grounds that do not raise a question of law: Civil and Administrative Tribunal Act, Sch 4, cl 12also apply . Those further qualifications include that the Appeal Panel must be satisfied that the appellant "may have suffered a miscarriage of justice" for various reasons, including that the decision was against the weight of the evidence.
3. Ground 1 in the Amended Notice of Appeal was that the Tribunal's reasons for terminating the social housing tenancy agreement were inadequate. In written submissions, it was said that the Tribunal provided no reasons or fundamentally inadequate reasons for the decision. However, in oral submissions, Mr Anderson, the solicitor for the appellant, submitted that based upon the account of what occurred at the hearing by the tenant's advocate, oral reasons were provided and that these reasons were inadequate.
4. Depending on the particular circumstances of the case, the failure of a Tribunal to provide adequate reasons is an error of law: Soulemezis -v- Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office (1997) 48 NSWLR 430; Perkins v County Court of Victoria (2000) 2 VR 246 at [56]. Meagher JA made the following observations in Beale at [444], which we consider apt to the present case: Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, statements of reasons must be looked at as a whole and the material inadequacies identified and considered. Another question, which need not be presently decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.
5. We consider that the question in this case, as to the adequacy of the oral reasons provided, raises a question of law.
6. Contrary to the respondent's written submissions on the stay application dated 14 November 2024 (as referred to above), at the hearing of the appeal, the respondent did not submit that adequate reasons were provided. Instead, it submitted that written reasons were not required. We agree with this submission because some oral reasons were provided, and written reasons were not required because the statutory obligation to provide written reasons in the Civil and Administrative Tribunal Act, s 62(2)was not enlivened.
7. At the hearing of the appeal, the respondent's position, ultimately, was that if oral reasons were required or provided, then it accepted that the provided reasons were inadequate. As to the need for oral reasons to be adequate when provided, see, for example, Hockley-Brown v Metford Road Pty Ltd t/as Morpeth Gardens Village [2023] NSWCATAP 151 at [7],[43], [50], [62], [70].
8. As to what is required in order to give adequate reasons in this case, we follow what was said upon this subject by Bell P (as his Honour then was) in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]-[77], albeit that this concerned written reasons that a Tribunal chooses to give.
9. Further, as the Appeal Panel observed in Shojai at [13]: The Tribunal's reasons do not need to be elaborate (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 433) and the extent and content of the reasons will depend on the matters in issue: Hull v Thompson [2001] NSWCA 359 at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). Allowance must also be made for the volume of proceedings of this nature in the Consumer and Commercial Division and the pressure it is under as a consequence (Orr per Ward JA (as the President then was) at [11]). Even a generously beneficial reading of these reasons, though, cannot overcome the obvious lack of reference by the Tribunal to its understanding of the applicable law and these reasons do not attract such a beneficial approach where the Tribunal spent two months preparing them.
10. Consequently, we have approached question of adequacy of reasons on the basis that we need to assess whether the reasons provided met the minimum acceptable standard, having regard to the factors referred to in the above passages, including the nature of the case, its significance to the parties and that the reasons need not be elaborate. This approach is also consistent with that taken by the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [215]-[230].
11. With regard to those matters, it is our view that the reasons were inadequate because they did not: 1. address the statutory provisions that needed to be followed in respect of the termination of the appellant's tenancy, including the need for the Tribunal to be satisfied that the breaches be, in the circumstances of the case, sufficient to justify termination and the issue of whether the breaches had been remedied; 2. identify the evidence that had been accepted in concluding that there had been noise and nuisance breaches; 3. address whether the conduct found to constitute the breaches was the conduct of the appellant or the conduct of others and if the latter, whether the appellant had permitted the nuisance or relevant interference with the peace enjoyed by neighbours; 4. address whether a specific performance order would be an appropriate order to make in the circumstances of the case.
12. One other important matter about the adequacy of reasons should be mentioned. It is difficult to see how a breach of the obligations of the tenant in the Residential Tenancies Act, s 51 (1)(b) and 51 (c) could be sustained in relation to the particularised matter about the police being called in response to reports of drug manufacturing and dealing in the appellant's unit in the absence of a finding that such conduct by the appellant had occurred. A finding of such seriousness would require a standard of proof according to the standard in Briginshaw v Briginshaw (1938) 60 CLR 336. However, no reference to the evidence, findings or reasoning process concerning this question was disclosed.
13. Accordingly, subject to our consideration of the respondent's submissions dealt with below about the merits of the case for termination, we would uphold Ground 1 of the appeal.
14. Under the heading "No Substantial Miscarriage of Justice", the respondent made written submissions that the appeal should not be upheld by reason of Ground 1 because "the critical issue here is whether this failure has resulted in a "substantial miscarriage of justice". The respondent then submitted that the decision to terminate was: ….founded on extensive and compelling evidence of the Appellant's ongoing antisocial behaviour, which had caused significant disruption to the peaceful enjoyment and safety of other tenants in the broader community. This evidence included multiple statutory declarations from affected tenants, police intervention reports, and medical evidence detailing the physical and psychological harm caused to others as a direct result of the Appellant's actions. This evidence was thoroughly considered by the Tribunal, and there is no suggestion that the absence of written reasons alters the factual foundation of the decision.
15. In this regard, the respondent also submitted that: 1. The Civil and Administrative Tribunal Act provides that appeals to the Appeal Panel can be based on a "substantial miscarriage of justice" where procedural fairness has been violated. 2. The appellant had not demonstrated that the failure to provide written reasons had materially affected their ability to challenge the decision or to understand the grounds upon which it was made. 3. The decision in Briggs v State of New South Wales [2005] NSWCA 444 requires the appellant to demonstrate that the procedural error resulted in a material disadvantage or that it affected the outcome of the decision. 4. Given the "abundance of evidence supporting the termination", the absence of written reasons does not rise to the level of a miscarriage of justice. As to the "abundance of evidence", the respondent's material on appeal included some only of the evidentiary material it presented to the Tribunal at first instance, along with evidentiary material obtained since the decision, particularly in recent times.
16. We consider the respondent's submissions that there was no substantial miscarriage of justice arising from the giving of inadequate reasons to be incorrect in a number of respects.
17. Firstly, because of the sparsity of reasons, neither we nor the parties know what the factual and evidentiary foundations of the decision were.
18. Secondly, the Civil and Administrative Tribunal Act does not require an appellant to show a "substantial miscarriage of justice" in the case of an appeal on a question of law. To the extent that the respondent's submission goes to whether the inadequacy of reasons, in this case, gives rise to an error of law that is addressed above. If, however, the respondent had in mind the requirement for the grant of leave to appeal from a decision of the Consumer and Commercial Division (as this is) in the Civil and Administrative Tribunal Act, Sch 4, cl 12 that the Appeal Panel be satisfied that the appellant ".. may have suffered a substantial miscarriage of justice" then that submission fails to address the proposition that inadequate reasons have, in the circumstances of this case given rise to a question of law.
19. Thirdly, if there were any doubt that, in this case, the inadequacy of reasons at first instance was not an error of law, we observe that the failure to provide adequate oral reasons in the manner we have referred to above has prevented the appellant from effectively exercising her appeal right. One of the purposes of a requirement to provide adequate reasons is to avoid this consequence: see, for example, Collins v Urban at [49]-[50]. This alone results in a material disadvantage and is a miscarriage of justice.
20. Fourthly, we note that the decision in Briggs was not concerned with a failure to give adequate reasons. We should also note that there was no exploration on this appeal as to the category of error of law and its resulting consequence inadequacy of reasons falls into according to those outlined by the plurality of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [1]-[16].

Remittal for redetermination

1. Commonly, where the Appeal Panel allows an appeal on the basis that inadequate reasons were provided this results in the decision being set aside and the proceedings being remitted for redetermination. As the Appeal Panel noted in Rice Marketing Board at [280], the question of remittal for redetermination is essentially a case-management decision to be guided by the need for the just, quick and cheap resolution of the real issues in controversy.
2. There are broad discretionary powers of the Tribunal in the Civil and Administrative Tribunal Act, s 81 (including to affirm a decision) and s 80 (3) (to conduct a new hearing). However, on many occasions, the Appeal Panel has referred to the inappropriateness of taking a course of determining controversial questions of fact: see, for example, Jeremiasse v Shaw [2021] NSWCATAP 394; Wootten v Simmons [2022] NSWCATAP 21 and Hockley-Brown.
3. The primary fact-finding in relation to conflicting evidence and factual evaluation in this matter would not be short or straightforward. It would involve another hearing before the Appeal Panel (the hearing of the appeal on 28 November 2024 commenced at 10:15 AM and concluded at 1:40 PM, with the Appeal Panel having to hear another appeal at 2:15 PM) at which new evidentiary material is likely to be presented, most probably, including evidence concerning the current situation, along with an opportunity to cross-examine witnesses and the making of further submissions from the parties about the application of the relevant statutory provisions to the facts.
4. There are also a number of specific matters we should mention.
5. At the hearing of the appeal, Ms Walsh,lawyer, who appeared for respondent, confirmed that we had not been presented with all of the respondent's evidentiary material provided to the Tribunal at first instance. What we were provided with from the respondent's evidentiary material was quite limited and, apart from one document, was confined to May, July and August 2023 material or otherwise was undated-the one document was a signed letter to the respondent dated 3 June 2024 from Ms Meakin- Jones. Amongst this material, there were no statutory declarations or witness statements concerning 2024 events. Nor were there any police reports.
6. As to 2024 events, including more current events, from the evidentiary material we have seen, there is conflicting evidence from a number of witnesses from both sides of the dispute. As to this, the appellant has sworn three recent statutory declarations in support of her defence, including her contentions that noise and nuisance disturbance related to her occupancy of the unit has ceased and that she did not "permit" the older disturbances by her occupants. There is also a statutory declaration from her immediate neighbour, declared on 21 November 2024, referring to the change for the better in noise disturbance since April 2024 and that she now almost never hears any noise from the appellant's unit and never hears yelling, screaming or arguments or any of the issues that existed before. She also questions the credibility of one of the principal complainants about the appellant's behaviour. The evidence of the immediate neighbour about a change in the noise disturbance situation is also supported by two recent statutory declarations from other residents of the unit building.
7. Given the age of the particulars of breach set out in the respondent's application, the absence in those particulars of matters that appear to be at the forefront of the respondent's case and what appears to continue to be an allegation about drug dealing from the appellant's unit (denied by the appellant in a statutory declaration), based upon an unspecific assertion in a Statutory Declaration from Mr Kruse declared on 26 November 2024, it seems to us that this is a case in which the respondent should now proceed to supply particulars of the breaches relied upon.
8. Furthermore, it seems to us that the respondent should consider whether the Notice of Termination relied upon is an appropriate basis for the relief it seeks.
9. For all these reasons, we have concluded that it is not appropriate for the Appeal Panel to determine the matter and that the proceedings should be remitted to the Tribunal for redetermination.
10. We also 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 [16]-[24]. This is because the Tribunal, as originally constituted, expressed a firm and concluded view about the merits of the appellant's case, which was adverse to the appellant.

Orders

1. For the above reasons, we make the following orders; 1. An extension of time to 7 November 2024 is granted in which to lodge the appeal. 2. The appeal is allowed. 3. The orders made by the Tribunal on 24 June 2024 are set aside. 4. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for hearing and redetermination by a differently constituted Tribunal 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. Registrar

Amendments 16 December 2024 - Paragraphs 40 & 55 - bold text changed to italic text DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2024