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1. This is an appeal from a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal (ACAT). It is brought pursuant to leave granted by a judge on 19 November 2025.

2. The subject matter of the proceedings in the ACAT was a residential tenancy dispute. The appellant (Mr Funda) was the tenant. The respondent (Ms Hoang) was the landlord. On 30 October 2024, a Senior Member of the ACAT made an order for possession and an order that Mr Funda pay Ms Hoang the sum of $17,824.58 by 20 November 2024.

3. Mr Funda appealed from that decision to the Appeal Tribunal of the ACAT. On 20 January 2025, the Appeal Tribunal, constituted by a Temporary Presidential Member, dismissed the appeal.

4. In these reasons: (a) The Original Tribunal refers to the ACAT constituted by the Senior Member who conducted the first instance hearing and made orders on 30 October 2024. (b) The Appeal Tribunal refers to the ACAT constituted by the Temporary Presidential Member exercising the internal appeal jurisdiction of the ACAT under ss 79, 81 and 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act); (c) References to the ACAT include references to the ACAT when constituted otherwise than as above and exercising its original jurisdiction.

5. The roles of the parties have changed at different stages of the proceedings. In the original application to the ACAT and before the Original Tribunal, Ms Hoang was the applicant and Mr Funda was the respondent. Before the Appeal Tribunal, Mr Funda was the appellant and Ms Hoang was the respondent. In this appeal, Mr Funda is the appellant and Ms Hoang is the respondent. In order to make clear who is being referred to, for the purposes of these reasons, the parties will be referred to by their names rather than their roles at any particular stage of the proceedings.

The Notice of Appeal

6. The Notice of Appeal includes the following grounds of appeal: a. Numerous errors of fact and law were made by members Morrison and Orlov as well as evidence deliberately avoided by both members in failing to give adequate consideration as to the true nature of the arrangement with my former landlord being that I, Mark Funda, had a Residential Tenancy Agreement with my former landlord, Ms Phoung Anh Hoang, which it most certainly was not. The residence was in fact a share house as advertised on AirBnB and the true and factually correct nature of my agreement with my former landlord was a Service Occupancy Agreement. The appellant did in fact run, maintain and keep the respondents’ AirBnb business running with the services I, applicant provided from July 2023 to June 2024 as requested by the respondent and her business partner, Mr Huey Tan via text ( provided in Affidavit 2 ). b. Improper conduct and perceived bias demonstrated by member Morrison in providing legal advice/practicing law from the bench and assisting Ms Hoang in calculating Arrears owing as clearly seen on the transcript in the hearing on 30 Oct 2024 in which an order was made for Mark Funda to pay Ms Hoang $17,824 in rental arrears.

7. Although not identified as one of the grounds of appeal, the Notice of Appeal does include a statement that: “Senior Member Orlov proceeded to conduct the appeal without the transcripts resulting in a miscarriage of Justice”.

8. The Notice of Appeal also indicates that Mr Funda would seek to put further evidence before the court. That material is identified as: a. Transcripts and recordings of ACAT hearings on 17 July, 30 Oct 2024 and ACAT Appeal on 20 Jan and 20 May 2025 as well as further affidavits of counter claim lodged for hearings which were not considered have been provided and are on file. b. Evidence of illegal entry by Respondent on Monday 24 June 2024 ( AFP Incident numbers 7782715 and 7832990 ) have been obtained and provided and on file and resulting harm caused to my children [names set out] aged 8 & 10 respectively. c. Deliberate false and misleading statements made by Respondent to ACAT knowingly and willingly deceiving the court.

9. The Notice of Appeal also includes the statement: “The Appellant is also seeking lawful compensation for illegal entry by respondent on Monday 24 June 2024”.

10. The orders sought include the setting aside of the order to pay rental arrears, compensation for trespass on 24 June 2024 and compensation “for all services done for Air Bnb business including maintenance, cleaning, washing linens, gardening, arborist, security & onsite management of AirBnb facility/residence”.

The hearing of the appeal

11. At the hearing of the appeal in this court, Mr Funda made submissions directed to the existence of an agreement with Ms Hoang that his services would be provided and rent would not be required. He said he assumed that she had accepted his request and that he was essentially a live-in house manager. He submitted that he had more than paid his debt to her. He also submitted that there were compassionate grounds upon which to allow the appeal and that he would be unable to make the payment of the debt the subject of the appeal.

12. Ms Hoang made brief submissions in opposition to the appeal. The appeal provision

13. Section 86 of the ACAT Act provides that a person may appeal to the Supreme Court from a decision of the Appeal Tribunal with the leave of the Supreme Court. The appeal is permitted “on a question of fact or law” from such a decision. As pointed out earlier, leave to appeal was granted on 19 November 2025.

The decision of the Original Tribunal

14. Ms Hoang applied to the ACAT on 2 September 2024. The application identified that she sought termination of the tenancy agreement and payment of rental arrears. The amount of the claim at that stage was identified as $11,807.50, based on a daily rate of $32.50.

15. Mr Funda provided a statement in response to the application. Procedural directions were made on 18 September 2024 and the matter was listed for hearing to be held on 30 October 2024.

16. The proceedings were heard before the Original Tribunal on 30 October 2024. The Original Tribunal made a termination and possession order which was suspended until 20 November 2024. The Original Tribunal also made an order requiring Mr Funda to pay $17,824.58 (being rental arrears and rent payable to the termination date).

17. The background facts found by the Original Tribunal were, in summary, as follows.

18. Between June 2021 and July 2024, Ms Hoang advertised the premises for short-term accommodation on Airbnb. They were advertised at the rate of $32.50 per bedroom per night. Some guests stayed for short terms. Others stayed for several months or longer.

19. Mr Funda moved into the premises in about June or July 2021. He rented one bedroom for $450 per fortnight. That equated to $32.14 per day. Rent was payable every four weeks in advance. There was no written tenancy agreement. Mr Funda was still living there at the time of the hearing of the Original Tribunal on 30 October 2024.

20. Mr Funda paid rent of $450 per fortnight up to 16 February 2024. He had, sometime previously, stopped making payments through Airbnb and instead deposited his rent directly into Ms Hoang’s bank account. From 17 February 2024, he paid no rent. Between 17 February 2024 and 12 July 2024, other Airbnb guests stayed at the premises. This included a guest called Emilio, who paid the advertised Airbnb rate. Airbnb guests gained access to the premises using keys stored in lock boxes.

21. Between February and June 2024, Mr Funda exchanged text messages with Ms Hoang about his activities, including cleaning the linen, assisting guests and cleaning the garage. The findings of the Original Tribunal were as follows: 17. Between February and June 2024, the tenant sent text messages to the lessor indicating he had been cleaning the linen, assisting with guests, and cleaned out the garage. On 15 February 2024, the tenant sent a text stating: (…) That I be shown consideration in all the work I’ve been doing and am happy to continue doing that my services basically cover my rent because there is still quite a lot of work to be done (…) 18. The lessor replied by text message that: (…) rental is an option (…) I’ll try to obtain all the figures by end of March and see if there is better option for all (…) however, it does not appear that any arrangement was confirmed.

22. On 5 June 2024, Mr Funda changed the lock box codes. As a result, neither Ms Hoang nor other Airbnb guests could access the keys to enter the house. Mr Funda allowed Emilio to enter the house, but Emilio vacated his room on 12 July 2024.

23. On 23 June 2024, Ms Hoang attended the premises with the assistance of two police officers. Later that day, Mr Funda sent a series of text messages to Ms Hoang, indicating that he had changed the front and back door codes and that he would call the police if she tried to access the premises. On 24 June 2024, Ms Hoang attended the property and was denied access by Mr Funda. On 2 or 3 July 2024, the Airbnb platform advised Ms Hoang that a guest had reported that they were unable to enter the property because they did not have the passcode.

24. As a result of Emilio vacating, from 13 July 2024, Mr Funda had exclusive possession of the premises.

25. The Original Tribunal then turned to consider whether there was a residential tenancy agreement in place. The Original Tribunal was satisfied that, at least by January 2024, the parties had entered into a residential tenancy agreement pursuant to s 6A of the Residential Tenancies Act 1997 (ACT). It recognised that prior to that, when Mr Funda first moved in, a different arrangement might have been in place if he secured his room through Airbnb. However, the Original Tribunal recorded that “the parties agreed that the arrangement had become a residential tenancy agreement by January 2024, if not earlier”.

26. The Original Tribunal held that the agreement was “periodic, oral and implied” and contained the standard residential tenancy terms set out in Sch 1 to the Residential Tenancies Act. The agreed rent was $450 per fortnight per bedroom, payable four weeks in advance.

27. As a result of Mr Funda changing the lock box codes on 5 June 2024, he had exclusive possession of the premises. The position adopted by Mr Funda at the hearing was that rent was payable, but he was entitled to “full rent abatement in return for assistance rendered”. The Original Tribunal determined that “by his conduct, the tenant had agreed to rent five bedrooms from 13 July 2024 onwards”.

28. The Original Tribunal then determined how rent should be calculated. For the period 17 February 2024 until 12 July 2024, Mr Funda was to pay $450 per fortnight for one bedroom. The rent for five bedrooms from 13 July 2024 would, at $32.14 per bedroom per day, equate to $160.70 per day or $2,249.80 per fortnight. However, at the hearing, Ms Hoang proposed that rent should be calculated at $1,400 per fortnight, which was closer to market rent for the premises. The Original Tribunal accepted Ms Hoang’s submission and treated it “as a waiver of her entitlement to rent above the rate of $1,400 per fortnight to which she was otherwise entitled”.

29. The Original Tribunal determined, for reasons that it gave, that this was not a rental increase above the prescribed amount for the purposes of s 64B of the Residential Tenancies Act.

30. The Original Tribunal summarised the rent payable by Mr Funda as follows: a. For the period 17 February to 12 July 2024: $450 per fortnight or $32.14 per day; and b. For the period 13 July 2024 onwards: $1,400 per fortnight or $100 per day.

31. The Original Tribunal then turned to determine whether Mr Funda was entitled to a rent abatement. On this issue, the reasons of the Original Tribunal were as follows: 41. The tenant submitted he did not pay rent after 17 February 2024 because the parties had agreed the tenant would assist the lessor with domestic duties (such as cleaning and gardening) and managing Airbnb guests in lieu of paying rent. The tenant relied on text messages filed with his statement to support that claim. In effect, his argument was that this was an implied term of the tenancy agreement. 42. I was not satisfied on the material before me that any such agreement had been reached between the parties. The text messages showed a request by the tenant and the lessor’s reply that she would make some inquiries. Further, at the hearing, the tenant agreed he had provided at least some assistance unilaterally and without the lessor’s knowledge or approval, including engaging a gardener.

32. The Original Tribunal went on to hold that, even if an arrangement did exist, such an arrangement would be contrary to cl 24 of the standard residential tenancy terms.

33. As a result, the Original Tribunal determined that the tenant was not entitled to a rent abatement.

34. The Original Tribunal went on to calculate rental arrears as follows: a. $4,724.58 for the period 17 February 2024 to 12 July 2024 (147 days inclusive); and b. $11,000 for the period 13 July 2024 to 30 October 2024 (110 days inclusive).

35. The Original Tribunal then noted an alternative argument that Ms Hoang was entitled to rent for one bedroom only for the entire period, as well as compensation for the loss arising from her inability to access the premises and receive payments from other Airbnb guests for the period from 6 June 2024. The Original Tribunal did not consider that claim further as it had determined that the tenant elected to rent five bedrooms from 13 July 2024.

36. The Original Tribunal then went on to consider whether or not to make a termination and possession order. It was satisfied that the notice requirements in cl 92 of the standard residential tenancy terms had been met and that the requirements of s 49(1) of the Residential Tenancies Act were established. The Original Tribunal determined that the making of a termination and possession order was appropriate but exercised the discretion available under s 49(4) to suspend the operation of the order for three weeks. It also indicated that it would make an order for the payment of rental arrears and rent payable to 20 November 2024.

37. The orders made by the Original Tribunal were as follows: 1. The residential tenancy agreement is terminated at 5pm on 30 October 2024. 2. The tenant must vacate the premises on or before 5pm on 30 October 2024. 3. If the tenant fails to vacate the premises as required by order 2, the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction. 4. The operation of orders 1, 2 and 3 is suspended until 5pm on 20 November 2024. 5. The tenant is to pay the lessor the sum of $17,824.58 (being rental arrears and rent payable to the termination date). Payment is to be made on or before 20 November 2024 at 5pm. 6. The tenant is to give the tribunal and the lessor a Notice of New Contact Details with his address for service of future notices and orders in these proceedings, by 20 November 2024. The decision of the Appeal Tribunal

38. The application for appeal, filed by Mr Funda on the same day as the decision of the Original Tribunal, identified the reasons for the appeal as follows: MEMBER DEMONSTRATED BIAS BY LEGALLY ASSISTING APPLICANT ANH HOANG MEMBER AGREED THERE WAS A PRIVATE AGREEMENT FOR MYSELF TO PROVIDE SERVICES FOR RENT WHICH SUPERSEDES RESIDENTIAL TENANCIES ACT MEMBER ORDERED I PAY $15 IN RENTAL ARREARS SINCE I ENTERED INTO AN AGREEMENT IN FEB 2024

39. The hearing before the Appeal Tribunal took place on 20 January 2025. The Appeal Tribunal was constituted by a Temporary Presidential Member, who gave reasons for the dismissal of the appeal immediately following the conclusion of submissions. Those reasons extend over nine and a half pages of transcript.

40. The Appeal Tribunal identified the principles applicable to appeals as stated in V v Elringtons Pty Ltd [2018] ACAT 23 at [23] and Harada v Barnes [2021] ACAT 66 at [7]-[10].

41. The Appeal Tribunal noted that Mr Funda had been ordered to provide to Ms Hoang and the Appeal Tribunal: (a) the transcript of the hearing before the Original Tribunal and the reasons for decision; (b) a list of errors of fact, errors of law or discretionary errors in the decision; (c) a copy of any proposed further evidence and written submissions in support of the application to adduce further evidence; and (d) the orders sought if the appeal was successful.

42. It noted that Mr Funda had not complied with those orders. In relation to the failure to provide the transcript, it said: … The significance of the appellant’s failure to provide a transcript of the hearing is that the evidence, which included the oral evidence given by the tenant, and by the lessor, at the hearing before Senior Member Morrison, is not before the appeal tribunal.

43. The Appeal Tribunal indicated that it required Mr Funda to identify the errors that were asserted. The first error was said to arise from [41]-[42] of the reasons. That was the finding that no agreement had been reached between the parties as to the abatement of rent: see [31] above. The Appeal Tribunal noted that the absence of a record of the oral evidence given by the parties would ordinarily result in that ground of appeal failing because Mr Funda had not demonstrated error. It then referred to evidence which Mr Funda’s brother, who assisted him in the conduct of the appeal, had pointed to. That evidence was recited and considered by the Appeal Tribunal. The submission made by Mr Funda was that the failure by Ms Hoang to specifically demand payment of rent gave rise to an implied agreement accepting the proposal made by Mr Funda. As to that argument, the Appeal Tribunal said: “As a matter of contract, that proposition is simply unsustainable.” The Appeal Tribunal said that even if there was a firm offer by Mr Funda to exchange services in lieu of rent, “it is clear that, from the communications that followed from the lessor, that the offer was not accepted, and that it was a matter that may, not must, be the subject of further discussions”.

44. The Appeal Tribunal identified that there were other ways in which Mr Funda might have put his case, such as on the basis of an estoppel, but said that the case was not conducted on that basis and that it was not obvious that it would have succeeded in any event. In those circumstances, the appropriate thing to do was “simply to disregard it”. For those reasons, the Appeal Tribunal did not find any error in the conclusion reached by the Original Tribunal.

45. It then turned to address what the Original Tribunal said in relation to cl 24 of the standard residential tenancy terms. The Appeal Tribunal said that the issue was not necessary to determine because it would only arise if Mr Funda was successful in disturbing the Original Tribunal’s finding that there was not an agreement for rent abatement in place.

46. The next issue considered by the Appeal Tribunal was the finding by the Original Tribunal that Mr Funda had agreed to rent five bedrooms from 13 July 2024 onwards. On this issue, the Appeal Tribunal found that the Original Tribunal had erred in concluding that there was an agreement on the part of Mr Funda to rent five bedrooms or that there was any agreement of Ms Hoang to such a course.

47. However, the Appeal Tribunal considered that Mr Funda had no entitlement to deny Ms Hoang access to or use of the premises, yet he did so. This was the “alternative argument” considered but not determined by the Original Tribunal (at [51]-[53] of its decision). The Appeal Tribunal considered that, in denying Ms Hoang the use of the remaining four bedrooms for the period from 13 July 2024 until vacation of the premises on 20 November 2024, Mr Funda caused Ms Hoang to suffer financial loss as a result of his trespass in relation to four of the five bedrooms.

48. The Appeal Tribunal identified that the proceedings before the Original Tribunal had been conducted on the basis that the rental rate would be $1,400 per fortnight, a substantial discount upon the amount that would otherwise be calculated using the daily rate per bedroom. Having rejected Mr Funda’s argument that there was an agreement to abate rent, the Appeal Tribunal said that Mr Funda had not identified any other basis for showing that the figure of $1400 per fortnight was incorrect. As a result, it rejected any challenge to the quantum of damages.

49. For those reasons, the appeal was dismissed. Chronology of events and affidavits

50. Mr Funda filed five affidavits in the ACAT or in his appeal proceedings before this court. Much of the affidavit material was in the nature of submissions, but there was some evidentiary material included within them. The material provided to the court from the ACAT included material related to the proceedings before the Original Tribunal and the Appeal Tribunal. It also included some material in the ACAT after the Appeal Tribunal made its decision. The latter material was, in some respects, difficult to follow. However, the relevant chronology appears to be as follows.

51. 30 October 2024: Original Tribunal hearing and termination and possession order.

52. 30 October 2024: Application for appeal to the Appeal Tribunal filed.

53. 13 January 2025: Directions made by the ACAT for a hearing in the original proceedings on 18 March 2025.

54. 20 January 2025: Appeal Tribunal hearing and order dismissing the appeal.

55. 14 March 2025: Directions made by the ACAT vacating the hearing on 18 March 2025 and revoking other directions made on 13 January 2025. Directions made for a hearing of the application on 20 May 2025.

56. 24 April 2025: Affidavit filed by Mr Funda in the ACAT deposing to the fact that he vacated the premises on 20 November 2024, that he left the keys on the premises (attaching photographs of the kitchen) and that he informed the ACAT of the fact of vacation. This affidavit formed part of the material provided by the ACAT to the Supreme Court pursuant to s 87 of the ACAT Act.

57. 14 May 2025: Mr Funda filed a “Response” in the ACAT identifying a counterclaim and seeking that the order made on 30 October 2024 requiring payment of $17,824.58 be revoked.

58. 14 May 2025: “Affidavit 2” deposed by Mr Funda for the ACAT proceedings. The affidavit asserts that the agreement “was in fact a Service Occupancy agreement between myself, the applicant and the applicants business partner, Mr Huey Tan as I was asked to perform duties and tasks to assist with the running and maintenance of the property which was used solely as an AirBnB business by the applicant which I also resided in”. The affidavit annexes text messages from July 2023 and Mr Funda’s request to do services in lieu of rent in February 2024. This is said to demonstrate an error by the Original Tribunal, indicating that there was never a residential tenancy agreement at all. The affidavit asserts that the Original Tribunal failed to acknowledge why Mr Funda was forced to exclude Ms Hoang from the premises on 24 June 2024 and raises the question of perceived bias by the Original Tribunal. It attaches text messages and Mr Funda’s original statement of 20 December 2024, which itself includes further text messages, quotations and other documents. This affidavit formed part of the material provided by the ACAT to the Supreme Court pursuant to s 87 of the ACAT Act.

59. 20 May 2025: Order made by the Original Tribunal dismissing Ms Hoang’s claim for compensation following vacation of the property on 20 November 2024.

60. 4 June 2025: Application for leave to appeal and leave to appeal out of time filed in the Supreme Court by Mr Funda.

61. 4 June 2025: Affidavit in support of the application for leave to appeal filed by Mr Funda. The affidavit asserts that there was a “service occupancy agreement” and bias on the part of the Senior Member who constituted the Original Tribunal. This affidavit refers to the statements made in the affidavit of 14 May 2025.

62. 19 November 2025: Order granting leave to appeal made by the Supreme Court.

63. 5 December 2025: “Affidavit 4” filed by Mr Funda in the Supreme Court following the grant of leave to appeal. The affidavit refers to the Appeal Tribunal proceeding without the transcript of the hearing before the Original Tribunal, an issue that had been raised during the course of the application for leave to appeal. The affidavit provides an explanation for the failure to comply with the orders requiring the filing of the transcript. The affidavit attaches directions relating to the filing of the transcript dated 13 November 2024. It also attaches the orders of the Original Tribunal dated 30 October 2024.

64. 18 February 2026: Application in proceeding filed by Mr Funda seeking to adduce additional evidence.

65. 18 February 2026: “Affidavit 5” filed in the Supreme Court by Mr Funda. This is an affidavit in support of the application in proceeding seeking to adduce additional evidence. The affidavit is largely in the nature of written submissions, asserting that there was no evidence that he was a tenant and that his role should accurately be described as a “non paid property manager”. He then states that he will provide award rates for a live-in property manager working seven days per week if his application to adduce further evidence is granted. He says that he will provide a bill for all services rendered in accordance with Airbnb bookings which he intends to subpoena. He suggests that the provision of free labour services for almost a year would amount to slavery, saying: “I am also seeking clarity from the court as to the courts position on Slavery …”. He says that he is seeking to have his role “redefined of my classification of a tenant to that of a property manager upon commencement of my defined role of management and house keeping services”.

66. 28 April 2026: Mr Funda filed submissions dated 27 April 2026 in support of his appeal. Those submissions raise his lack of means or capacity to pay the $17,824. He submits that he paid well over this amount in time and services rendered pursuant to the agreement with Ms Hoang. He submits that Ms Hoang had made false claims about the occupancy of the premises. He makes submissions about the circumstances on 24 June 2024 and the impact upon his children. He also refers to the medical condition from which he has suffered and the numerous issues this has caused for him. His submissions conclude “I simply wish to move on with my life and put this matter behind me”.

67. So far as the chronology is concerned, the proceedings in the ACAT (as distinct from the Appeal Tribunal) following the making of orders on 30 October 2024 are difficult to understand. It appears that the ACAT considered that there was a further claim for compensation by Ms Hoang outstanding at that time which was then dismissed on 20 May 2025. There is no record of how the Tribunal dealt with the “Response” of Mr Funda dated 14 May 2025. However, it is not essential to reach firm conclusions as to these aspects of the proceedings as the appeal is directed to the order made on 20 January 2025.

Application to adduce further evidence

68. The Notice of Appeal was filed on 4 June 2025. It was well out of time and required leave to appeal. That leave was given on 19 November 2025.

69. The Notice of Appeal included a statement that Mr Funda would seek to put further evidence before the court. That is set out earlier in these reasons (see [8] above). Further, on 18 February 2026, Mr Funda filed an application in proceeding seeking leave to adduce further evidence in relation to the services that he provided at the request of Ms Hoang.

70. That application also sought the issue of subpoenas to former occupants of the Airbnb and to the Airbnb corporate entity.

71. Rule 5052 of the Court Procedures Rules 2006 (ACT) permits the Supreme Court to receive, “on special grounds”, further evidence about questions of fact on an appeal from the ACAT. That power would be sufficient to permit, in appropriate circumstances, further evidence that would demonstrate a miscarriage of justice.

72. Had a transcript of the proceedings before the Original Tribunal been tendered in the appeal then, having regard to the terms of the Notice of Appeal asserting a miscarriage of justice because of its absence in the Appeal Tribunal, I would have admitted it into evidence. However, it was not and, hence, I did not.

73. So far as the other evidence contemplated as being tendered or the subject of a subpoena for the purposes of being tendered is concerned, no such documents were tendered, and no application was made in relation to the issue of subpoenas for the purposes of tendering evidence on appeal. Having regard to the material the subject of the application in proceeding, I do not permit that additional evidence to be called. That is because there is no evidence that it was not available to be called either in the Original Tribunal or for the purposes of the hearing in the Appeal Tribunal. It would, in my view, be inconsistent with the proper role of this court to permit Mr Funda to adduce such further evidence on an appeal. The evidence is simply evidence to bolster a factual contention which Mr Funda made before the Original Tribunal. Appeals to this court are not opportunities to reopen factual questions which may have been contested differently below. The purpose of an appeal is to identify errors of fact or law. It is significant that this is a second level of appeal, Mr Funda already having had a previous opportunity where leave might have been sought to adduce additional evidence.

74. The application in proceeding dated 18 February 2026 will be dismissed.

Mr Funda’s submissions on the appeal

75. The submissions of Mr Funda in this court make the following points: (a) He does not have the means or capacity to pay $17,824 in rental arrears. (b) He paid “well over this amount” in time and services rendered in the operation and running of Ms Hoang’s Airbnb business and this was the agreement he had with her. (c) Ms Hoang has deliberately misled the ACAT as to the nature of this agreement. (d) Ms Hoang was aware that his children were living with him when she demanded that he leave the property on 24 June 2024, and to uphold the order being appealed would “essentially condone this behaviour”. (e) He suffers from complex Post-Traumatic Stress Disorder which has caused numerous issues in his life and he simply wants to move on with his life and put this matter behind him.

Consideration and decision

No miscarriage of justice due to absence of transcript

76. I have addressed earlier the fact that, had a transcript of the proceedings before the Original Tribunal been tendered, I would have admitted it into evidence. That is because it would have been relevant to determining whether or not there was a miscarriage of justice arising from the fact that the Appeal Tribunal proceeded to determine the appeal before it without the benefit of the transcript of the proceedings before the Original Tribunal.

77. I am satisfied that there was no miscarriage of justice. That arises from two matters, in combination.

78. The first matter is that, on 13 November 2024, Mr Funda was ordered to, amongst other things, give to Ms Hoang and the Appeal Tribunal a transcript of the hearing before the Original Tribunal. He did not do so. Nor did he comply with other orders requiring him to provide documents to the Appeal Tribunal, including a list of errors of fact or law in the decision of the Original Tribunal. It was in those circumstances that the Appeal Tribunal proceeded in the absence of the transcript. The fact that Mr Funda was unrepresented or that the ACAT has a degree of informality associated with it did not excuse his non-compliance with the orders of the ACAT if he sought to invoke its appeal jurisdiction. If the Appeal Tribunal was aware of medical conditions that might have affected Mr Funda’s capacity to comply with the orders of the ACAT, then it would have been obliged to take that into account in determining whether to proceed. However, the material before the court does not demonstrate any error in the exercise of discretion.

79. The second matter is that even with the benefit of a further level of appeal, Mr Funda has not sought to tender and has not filed a transcript of the proceedings before the Original Tribunal. There is therefore no basis upon which it is possible to conclude that the Appeal Tribunal failed to consider some material evidence given orally at the hearing when determining that the Original Tribunal did not err in finding that there was no agreement for the abatement of rent. Rather, the material that was available to the Appeal Tribunal and the additional material that was put before the Supreme Court for the purposes of the appeal indicated that the basis for the allegation of an agreement for the abatement of rent did not extend beyond the text message communications identified by the Original Tribunal.

80. For those reasons, to the extent that it is alleged that there was a miscarriage of justice occasioned by a failure on the part of the Appeal Tribunal to either obtain for itself the transcript of the proceedings before the Original Tribunal or, alternatively, further adjourn the proceedings in the hope that Mr Funda would obtain the transcript, that ground of appeal is not made out. No error in finding a residential tenancy agreement

81. Within ground (a) in the Notice of Appeal is the contention that there was no residential tenancy agreement. This was contrary to the agreement of the parties that there was such an agreement recorded in footnote 2 at [23] of the Original Tribunal’s reasons. In any event, it is clear that, at the times relevant for the purposes of the proceedings, there was such an agreement in place. That arises from the very broad definition of residential tenancy agreement in s 6A of the Residential Tenancies Act. That provides: 6A What is a residential tenancy agreement? (1) An agreement is a residential tenancy agreement if— (a) under the agreement— (i) a person gives someone else (the tenant) a right to occupy stated premises; and (ii) the premises are for the tenant to use as a home (whether or not together with other people); and (iii) the right is given for value; and (b) the agreement is not an occupancy agreement under section 71C. (2) The agreement may be— (a) express or implied; or (b) in writing, oral, or partly in writing and partly oral. (3) The right to occupy may be— (a) exclusive or not exclusive; and (b) given with a right to use facilities, furniture or goods. (4) This section is subject to the following sections: • section 6D (Certain kinds of agreements not residential tenancy agreements) • section 6E (Certain people given right of occupation not tenants).

82. The agreement was not an occupancy agreement because none of the circumstances in s 71C(1)(b) of the Residential Tenancies Act were applicable. Further, neither s 6D or s 6E applied.

83. The agreement was within s 6A because Mr Funda was given a right to occupy stated premises for value for use as a home and it did not matter that the right to occupy was non-exclusive.

No apprehension of bias

84. This contention was ground (b) in the Notice of Appeal. This ground was not the subject of any written or oral submissions. As the transcript of the proceedings in the Original Tribunal was not put before the court, it is not possible to identify anything that was said during the course of the proceedings that might give rise to an apprehension of bias. So far as the reasons disclose the method of calculation of damages, there is nothing to give rise to an apprehension of bias. It is within the scope of the functions of the ACAT to attempt to properly characterise claims for damage, which will often be advanced by persons with no legal qualifications. Obviously, it must do so in a manner consistent with procedural fairness, but the assessment of claims consistent with what the law permits is the duty of the ACAT rather than an indication of the possibility of bias.

No error as to the absence of an agreement for the abatement of rent

85. As I have indicated, the communications between Mr Funda and Ms Hoang said to have given rise to the agreement for the abatement of rent were contained in text messages. Those were before the Original Tribunal. It is unnecessary to set them out in these reasons. They are contained in the document “Statement of Mark Funda” which is identified in the index provided by the ACAT as being dated 16 October 2024. The text messages make it clear that there was never any agreement by Ms Hoang to the proposal by Mr Funda that he should be “shown consideration in all the work I’ve been doing”.

86. The Appeal Tribunal was plainly correct in rejecting the submission that these text messages gave rise to an agreement. Having set out the relevant evidence and arguments, the Appeal Tribunal said that it was necessary that there be both an offer capable of acceptance and an unequivocal act on the part of Ms Hoang which communicated acceptance of that offer. It continued: Giving the appellant the benefit of the doubt that the communication on 15 February was a firm offer to exchange services, or the continued provision of services in lieu of the rent, rather than what lawyers would describe as an invitation to treat, that is, an invitation to the lessor to enter into negotiations on that subject, it is clear that, from the communications that followed from the lessor, that the offer was not accepted, and that it was a matter that may, not must, be the subject of further discussions.

87. No error of law or fact is disclosed in the conclusion reached by the Appeal Tribunal.

88. Mr Funda included in his affidavit of 14 May 2025 (filed in the ACAT on 19 May 2025) an earlier text message from a Mr Huey Tan, said to be a business partner of Ms Hoang. That was a text message from Mr Tan in July 2023 which passes on a request from Ms Hoang for Mr Funda to do things including washing bedding, giving the bedrooms a “quick sweep”, keeping the common areas clean, not using the bathtub or the dishwasher and switching off all power points that were not in use. The context in which this request was made was not apparent. It occurred some seven months prior to the communications in February 2024 said to have given rise to the contractual arrangement. If admitted into evidence, this would not alter the correctness of the conclusion reached by the Appeal Tribunal that no contractual agreement was reached that would discharge or vary the obligation to pay rent. It is not clear why it was not tendered at any earlier stage.

No error arising from impecuniosity

89. The Appeal Tribunal did not err in declining to set aside the orders of the Original Tribunal on the basis that Mr Funda was unable to pay the amount ordered to be paid. This was an issue dealt with briefly by the Appeal Tribunal after it had dismissed the appeal. It indicated the process that would be required to be followed and the potential for payment to be made by instalments.

90. The submissions made on behalf of Mr Funda may have been based upon a misconception about the role of the ACAT. Both the Original Tribunal and the Appeal Tribunal were obliged to determine whether Mr Funda had failed to pay rent and whether rent was owing to Ms Hoang. That involved an assessment of the legal entitlements of both parties. It did not involve an exercise of discretion as to whether or not any legal entitlements found to exist should be enforceable. If the Original Tribunal found that rent or damages was payable to Ms Hoang, then it was not entitled to refuse to enforce those obligations for discretionary reasons arising from Mr Funda’s impecuniosity or other personal circumstances.

91. As a result, impecuniosity does not provide a basis for overturning an order of the ACAT enforcing the terms of a residential tenancy agreement. There is no error in making an order that gives effect to an impecunious person’s legal obligations. That is the case even though it leaves the liability hanging over Mr Funda and even though, as a practical matter, enforcement of the liability against him may not be worthwhile. As correctly identified by the Appeal Tribunal, whether or not the orders of the ACAT are ultimately sought to be enforced against him is an issue which needs to be dealt with subsequently. It may be that impecuniosity means that it is not worthwhile for the creditor to pursue the debt.

92. Section 71 of the ACAT Act provides that a money order made by the ACAT may be enforced by filing in the Magistrates Court a copy of the ACAT’s sealed order and a supporting affidavit stating the amount owed under the money order. The money order is then taken to be an enforceable order of the Magistrates Court for the purposes of Pt 2.18 of the Court Procedures Rules. There are then various procedures available for enforcing the order. These include the possibility of the making of an instalment order in one of the various circumstances described in r 2150. None of these procedures are particularly straightforward for an unrepresented creditor or debtor. However, nothing about them provides a basis for interfering with the order made by the Appeal Tribunal.

Counterclaim

93. The Notice of Appeal also makes reference to claims by Mr Funda for compensation for trespass on 24 June 2024 and compensation for all services done for the Airbnb business. Neither the Original Tribunal nor the Appeal Tribunal appear to have been called upon to address these issues. This seems to have been the subject matter raised by the document headed “Response” dated 14 May 2025, well after the decision of the Appeal Tribunal. The material sent by the ACAT does not disclose how this counterclaim was dealt with. It only shows an order on 20 May 2025 that: “The Applicant’s claim for compensation following the Respondent’s vacate of the property on 20 November 2024 is dismissed.” Having regard to the roles of the parties and the reference to “the Respondent” vacating the premises, this order appears to dispose of some claim by Ms Hoang, although it must be said that the records are hard to understand.

94. These issues were not raised in the Application for Appeal filed in the ACAT on 30 October 2024. Nor were they identified as issues the subject of the appeal in the Appeal Tribunal’s reasons. Mr Funda has not established that there was an error on the part of the Appeal Tribunal in its decision on 20 January 2025 in failing to make an award of damages relating to the alleged trespass on 24 June 2024 or in failing to make an order to compensate Mr Funda for the services that he provided for the benefit of Ms Hoang while a resident at the premises. I observe that it would be difficult for any such claims to have succeeded in light of the finding that, by changing the lock box codes on 5 June 2024, Mr Funda had taken possession of the whole of the property. While the Original Tribunal and the Appeal Tribunal focused on the period after 13 July 2024, it is hard to avoid the conclusion that Mr Funda was trespassing insofar as he asserted exclusive possession of the whole of the premises from 5 June 2024. That would make it difficult to establish a cause of action for trespass against the true owner based upon what occurred on 24 June 2024. Further, the finding that there was no concluded agreement to pay for services rendered for the benefit of Ms Hoang’s Airbnb business would make it impossible to recover compensation pursuant to any contractual entitlement, and no other legal basis for an entitlement to compensation was advanced.

Orders

95. Mr Funda has not established any ground of appeal. There is no basis upon which to set aside the decision of the Appeal Tribunal. The orders of the Court are: (1) The application in proceeding dated 18 February 2026 is dismissed. (2) The appeal is dismissed. (3) There is no order as to costs.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: