Hawkins v Nassif

(1) Removing Javilac Holdings Pty Ltd t/as Charis Properties as a party to the proceedings (Order 1);

(2) joining Mr David Hawkins as a respondent to the proceedings[1] (Order 2);

(3) terminating the residential tenancy agreement between the appellants as tenants (tenants) and the respondent as landlord (landlord) immediately, as the tenants had breached the residential tenancy agreement by failing to pay rent or charges (Order 3);

(4) suspending the order for possession until 6 August 2025 (Order 4). We note that there is no express order for possession, but it is implied;

(5) ordering the tenants to pay an occupation fee (Order 5);

(6) allowing the landlord to request the relisting of the matter to determine any occupation fee owing (Order 6);

(7) ordering the tenants to pay the landlord $17,932.54 immediately (Order 7); the details of the money order being:

(a) rental arrears for the period 19 May to 29 July 2024 in the sum of $17,500.00 and

(b) water arrears for the period 28 November 2024 to 29 July 2025 in the sum of $432.54.

1. Brief written reasons were given for some of those orders. At the commencement of those reasons, the Tribunal stated that the landlord had provided the Tribunal with the "Residential Tenancy Agreement, Change of Shared Tenancy Arrangement, the Notice of Termination and the Tenant Rent Ledger".
2. At the commencement of the hearing, as we anticipated that both Mr Hawkins (for the tenants) and Ms Avila (for the landlord) would in effect be giving us evidence, we administered oaths to each.
3. We note immediately that Order (7), namely that the tenants to pay the landlord $17,932.54, exceeded the Tribunal's powers. That is because the relevant "Monetary limit of jurisdiction of Tribunal" in respect of claims made under s 187 of the Residential Tenancies Act 2010 (NSW) (RT Act), that is, claims for compensation, is $15,000: Residential Tenancies Regulation 2019 (NSW) (RT Regulations), reg 40(b).
4. As we explained at the appeal hearing, if for no other reason, Order (7) must be set aside and the appeal allowed.
5. However, as will be seen, there are additional reasons why the appeal should be allowed, Order (7) set aside and the matter be remitted to the Tribunal or redetermination.
6. We note that, as the tenants have now vacated the premises, there is no utility in considering the appeal in relation to Orders (3), (4) (5) and (6). Nor was any issue raised about Order (1). As noted below, the landlord sought to raise order (2) at the appeal hearing, in so far as the landlord sought the removal of Mr Hawkins as a party to the appeal proceedings and the Tribunal proceedings.
7. However, the substance of this appeal involves Order (7).

1. The tenants filed a Notice of Appeal on 5 August 2025, which is within the time required for filing appeals in respect of residential proceedings set out in r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) namely 14 days.
2. In the Notice of Appeal, the tenants seek leave to appeal on the basis that the Decision was not fair and equitable, and against the weight of the evidence. The tenants also say that there is significant new evidence now available that was not reasonably available at the time of the hearing.
3. As to the Decision being not fair and equitable, the tenants say:

(1). At the commencement of the proceedings the [tenants] requested the Tribunal Member to grant a short adjournment of one week to enable the [tenants] to file [their] response and evidence in reply, and the Tribunal Member refused that request without providing any reasons.

(2). The [tenants say] that such refusal was a denial of natural justice, and contrary to allowing the [tenants] a fair hearing of the matters in dispute.

(3). The [tenants say that they were] not allowed to present any evidence, and that therefore any decision made by the Tribunal Member was lopsided and made in the absence of any evidence being presented by the [tenants].

(4). The [tenants have] available photographic and video evidence about the property as to the multiple defects with the property, and that [they were] not able to present that evidence that is now available.

(5). The [tenants say] that the financial calculations presented by the real estate agent and relied upon by the Tribunal Member were inaccurate and incorrect.

1. As to the decision being not fair and equitable, the tenants say:

What evidence did you give at the hearing? What documents did you show the Tribunal?

(1). The [tenants were] not given any opportunity to present any evidence at the Hearing, and [were] denied natural justice by the denial of the opportunity to present his evidence.

(2). Had the [tenants] been given the opportunity to present [their] evidence after a short adjournment of one week, then the Tribunal Member would not have made the Orders made in the terms made.

(3). As such the Hearing was lopsided in that the Tribunal only heard one side of the matter, while denying the [tenants] the opportunity to properly present his case and evidence.

What evidence did the other party give? What documents did the other party show the Tribunal?

(1). The [tenants believe] that the real estate agent presented a tenant ledger for the property, but as the Appellant was not given a copy of that document, the [tenants do] not know what that evidence indicates.

(2). The [tenants were] not given any opportunity to test any evidence presented to the Tribunal Member.

What evidence should the Tribunal have given more weight to? Why?

(1). The Tribunal should have allowed the [tenants] the opportunity to present [their] evidence as to the arrears of rental claimed by the landlord, and to present [their] evidence as to the exact amount of arrears due and payable, using the correct start date for the tenancy, and not the start date as claimed by the landlord.

(2). The Tribunal should have allowed the [tenants] the opportunity to present [their] evidence as to the condition of the property throughout the tenancy, including multiple instances when the property became uninhabitable due to sewerage reticulating in the toilets, showers and bathrooms, flooding of rooms due to damaged roofing and gutters, and the failure of power points, taps and appliances to work.

(3). The Tribunal should have allowed the [tenants] the opportunity to present [their] evidence from Ausgrid who attended the property on several occasions and condemned the power supply to the property as a danger to the occupants - Ausgrid issued work orders for the property which have not been complied with.

(4). The Tribunal should have allowed the [tenants] the opportunity to present [their] evidence from Sydney Water about restricting the water service to the property due to non-payment of water rates by the landlord.

1. As to there being significant new evidence now available that was not reasonably available at the time of the hearing, the tenants say:

What evidence/documents do you now seek to produce to the Tribunal? If you want to rely on documents or statements you must attach copies to this application form.

(1). Photographs and videos regarding the reticulation of sewerage.

(2). Photographs and videos regarding the water damage to the [tenants] personal property caused by the defective roof and guttering.

(3). Defect notice from Ausgrid.

(4). Restriction of services notice from Sydney Water.

Why was this evidence (including documents) not available at the time of the hearing?

(1). The evidence of videos and photographs was available at the time of Hearing, but the Tribunal member did not allow the [tenants] the opportunity to present that evidence.

(2). The notices from Ausgrid and Water was no available but has since become available.

1. The tenants filed a 44 page bundle of documents on 23 September 2025. The material was divided into five sections as follows.
2. First, a chronology of procedural events, including the relevant orders and directions made by the Tribunal and the Appeal Panel.
3. Secondly, a transcript of the proceedings before the Tribunal on 30 July 2025.
4. Thirdly, submissions asserting a lack of compliance by the landlord of orders and directions of the Appeal Panel.
5. Fourthly, what is described as "Appellant's Evidence and Submissions", being:

(1) "(C). Appellant's Evidence Given to Tribunal at First Instance". We note that this is not in fact the evidence filed by the tenants in the Tribunal. Rather these are submissions asserting, amongst other matters, that:

(a) the tenants had sought an adjournment of the hearing of 30 July 2025;

(b) the Tribunal did not address the request for an adjournment other than to say "No, no, we don't have time to - like - I can make it. I can make a termination order for non-payment of rent";

(c) that the tenants had not been provided any evidence from the landlord;

(d) the tenants had a fundamental right to be heard when the matter was before the Tribunal on 30 July 2025, and that they were denied procedural fairness: Sali v SPC Ltd (1997) 67 ALR 84;

(2) "(D). Appellants Evidence Not Provided to the Tribunal at First Instance Upon Which the Appellant Now Seeks to Rely". Here the tenants explained that, had they been granted the short adjournment they sought, they then would have sought a "nominal Set-Off" of $200 per week in the total amount of $8,450 because of defects in the property being sewerage overflow, a leaking roof, a non-compliant electrical power board, a defect identified by Ausgrid, and because of a "Restriction Notice" issued by Sydney Water due to non-payment of water rates by the landlord. The tenants say that when taken collectively, these matters confirm that that the property did not meet the standards expected by them given the advertising of the property by the landlord and his agent;

(3) "(E). Appellants Written Submissions in Support of the Appeal". Here the tenants submit that:

(a) the money order of $17,932.54 exceeds the power of the Tribunal under reg 40(b) of the RT Regulations, such that the order should be set aside;

(b) the tenants' request for an adjournment should have been granted because the adjournment request:

(i) was for a reasonably short period of time:

(ii) would not have impacted adversely on the landlord who made no submissions as to any hardship he might suffer if the adjournment were granted;

(iii) was made by Mr Hawkins who was unable to devote his attention to this matter due to his involvement as a witness in a matter in the NSW District Court;

(iv) was reasonable because it would have allowed the Tribunal to consider the matter completely, once all material had been filed and presented to the Tribunal; and that

(v) the failure to grant the short adjournment has put the tenants to additional costs in preparing the appeal, when but for the granting of a short adjournment, those additional costs would not have been necessary;

(c) the Tribunal's Decision was made without all the facts being presented, the Tribunal thus falling into error;

(d) the Tribunal made an unreasonable decision. The tenants submit that a fair reading of the transcript of the proceedings on 30 July 2025 indicates that:

(i) the Tribunal did not give any consideration to the short adjournment request of the tenants, nor did it provide any reasons for refusing the adjournment request;

(ii) the Tribunal allowed the landlord's agent to present material to the Tribunal without being concerned as to whether that material had been provided to the tenants in advance of the hearing or during the hearing;

(iii) the Tribunal made a money order which exceeded the jurisdictional limit of the Tribunal's powers;

(e) there are various "subsequent matters" relevant to the appeal which should be taken into account by the Appeal Panel when determining the appeal;

(f) they seek their costs, being disbursements and expenses in relation to the appeal in the sum $398.00, together with a rental set-off of $1,500.00, being a total of $1,898.00.

1. The tenants also filed submissions in reply on 24 October 2025.
2. These submissions deal with:

(1) the landlord's non-compliance with directions and orders of the Appeal panel;

(2) the consequences of that non-compliance;

(3) proof of service of the tenant's evidence and submissions.

1. Where relevant, we will refer to these submissions in our Consideration section.

1. The landlord filed no Reply to Appeal, despite orders to do so.

1. The landlord filed a bundle of documents on 15 August 2025. These documents include:

(1) the subject residential tenancy agreement;

(2) the relevant rental ledger;

(3) correspondence between the parties, including a draft deed of settlement proposed by Mr Hawkins on 12 August 2025 in an attempt to resolve the appeal;

(4) 15 pages of telephone records for the landlord's agent's mobile telephone.

1. Mr Hawkins for the tenants objected to this material being read by us. He claimed that he had never received the materials. However, as Ms Avila pointed out, the covering email indicates that Mr Hawkins was "cc'ed" into the email sending the documents to the Appeal Panel. Ms Avila further submitted that she relied on the deeming provisions of the RT Act allowing documents to be served by email.
2. Very little of this material is relevant to the appeal. However, some materials, such as the residential tenancy agreement and the ledger, clearly are. And some of the documents sought to be relied on by the landlord are the tenants' documents or correspondence.
3. That said, the offer to settle the appeal proceedings would never be relevant (or admissible) until the conclusion of the hearing and costs were sought.
4. On balance, we consider that the landlord should be allowed to rely on all this material (which predominantly is the relevant residential tenancy agreement and emails between the parties, including in particular emails from Mr Hawkins to Ms Avila), save for the following:

(1) the tenants' rental ledger appearing at pp 10 and 38 (as Mr Hawkins claimed to have never received these documents);

(2) the proposed terms of settlement apparently proposed by Mr Hawkins on or about 12 August 2025, appearing at p 47 of the bundle;

(3) telephone records of a number of unidentified mobile telephone numbers appears at pp 11-26 of the bundle.

Documents provided to the Appeal Panel on the morning of the appeal

1. Just before the appeal hearing, in fact 21 minutes before the appeal hearing was due to commence, the landlord emailed an application for miscellaneous orders to the Appeal Panel Registry.
2. We were told by Mr Hawkins that this application was handed to him by Ms Avila a few minutes before the appeal hearing began.
3. The application sought the following orders:

a. Removal of David Charles Hawkins from proceedings.

b. Removal of David Charles Hawkins as joined to respondent to proceedings.

c. Respondent to pay $15,000 as full settlement to account to rent arrears, occupation fee and water usage ... see Deed of Settlement.

d. Authentication is QUESTIONED & REQUIRED as to the signature on the letter David Charles Hawkins gave to General Member S McNeill on 30 July 2025, purporting that his son Digby George Tarrant-Hawkins had given authority to his father to act on his behalf.

i. A copy of this Letter of Authority was NOT given to the Applicant and therefore the son's signature could not be authenticated (refer to Passport photo ID with signature for Digby George Tarrant-Hawkins, digital drivers license ID also supplied)

1. The grounds for seeking those orders are extensive. In brief summary, they include lengthy submissions as to why Mr Hawkins is "NOT of good character, [and] NOT a fit & proper person". Particulars of that submission include allegations of criminal convictions for acts of dishonesty, being struck off as a solicitor, being an undischarged bankrupt and generally being a "SERIAL MASTER of DECEPTION, LIAR & a FRAUDSTER".
2. The landlord further submits that "in the tenancy application of this property ... of his son as sole tenant, the signature is a forgery".
3. The documents also included a Deed of Settlement and Release between the landlord and Mr Digby George Tarrant-Hawkins (whom the landlord submits is the only tenant of the subject premises).
4. No reason at all was advanced why the landlord should be permitted to file this application and the attached documents filed 21 minutes before the commencement of the appeal.
5. In any event, as we explained at the appeal hearing, by reason of r 29 of the NCAT Rules, the parties to an internal appeal are the appellant (here the tenants) (NCAT Rules, r 29(a)), and any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance (NCAT Rules, r 29(b)).
6. In relation to orders (a) and (b) as sought, Mr Hawkins was joined as a party to the Tribunal proceedings by the Tribunal. If the landlord disagrees with that order, it was open to challenge the order of joinder on appeal. The landlord did not do so.
7. As to order (c) as sought, namely that the tenants pay $15,000 in full settlement of rent arrears, occupation fees and water usage, the landlord relies on a draft (and unsigned) Deed of Settlement and Release. How the draft came into existence is entirely unexplained.
8. Order (d) sought authentication of a signature on a letter Mr Hawkins apparently gave to the Tribunal on 30 July 2025, purporting that Mr Hawkin's son Mr Digby George Tarrant-Hawkins had given authority to Mr Hawkins to act on his behalf.
9. As the Appeal Panel recently stated in Jiang v Earlcore Pty Ltd [2025] NSWCATAP 292 at [50]:

As this issue was not raised in the proceedings under appeal, it cannot be raised on appeal, As the Appeal Panel stated in Bartel v Ryan [2018] NSWCATAP 231 at [25], the High Court of Australia said in Coulton v Holcombe [1986] HCA 33 at [9] that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27].

1. In these circumstances, the application for the miscellaneous orders sought by the landlord is dismissed.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) where the Appeal Panel relevantly stated at [32] (references omitted):

To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

1. Where a party is a self-represented non-legally trained appellant, the grounds of appeal may be considered generally by the Appeal Panel (subject to procedural fairness considerations) to determine whether a question of law has been raised: Simjanovska v Dogan [2023] NSWCATAP 69 at [78]; Prendergast at [12].
2. The tenants submit that they were denied procedural fairness by the Tribunal. This raises a question of law, for which leave to appeal is not required.
3. The issue for us to determine is whether or not there has been an error by the Tribunal on that question of law.
4. For the following reasons, we conclude that there has been, that being a denial of procedural fairness in the manner in which the Tribunal conducted the hearing.
5. For the reasons that follow, we conclude that there has been an error on a question of law.
6. In those circumstances, it is not necessary to set out the principles as to when the Tribunal will grant leave to appeal where the Tribunal makes errors other than errors on questions of law.

1. The tenants' submissions are sufficiently set out in the Notice of Appeal and are reproduced at [12] and [13] above.

1. The landlord's written submissions are silent on this matter.
2. At the appeal hearing, in oral submissions, Ms Avila focused on Mr Hawkin's character, which we thought was of little assistance. For instance, Ms Avila told us that Mr Hawkins was "a master at false evidence.
3. Ms Avila also concentrated on the conduct of the landlord, in promptly responding to issues raised by the tenants, such as matters requiring assessment by plumbers.
4. In short, the landlord presented no persuasive augment to counter the tenants' allegation that they had been denied procedural fairness at the Tribunal hearing.

1. As we noted above, Order (7), namely that the tenants to pay the landlord $17,932.54, exceeded the Tribunal's powers. If for no other reason, Order (7) must be set aside and the appeal allowed.
2. However, there are other reasons why the Tribunal's Orders must be set aside.
3. It is necessary to understand what transpired at the Tribunal hearing. We had the benefit of a transcript of the hearing. This had been obtained by the tenants, who had organised for an independent transcriber to produce a transcript based on the Tribunal's sound recording of the hearing of 30 July 2025.
4. No objection was made by the landlord to the accuracy of the transcript.
5. The background is that on 3 July 2025, the landlord filed an application with the Tribunal seeking orders for "termination and possession".
6. The reasons for seeking those orders were "History of late rent payments, current rent paid to date of 18/5/25".
7. On 3 July 2025, the Tribunal sent the parties a "Notice of conciliation and hearing (group list) - in person", stating that the hearing of the landlord's application would take place on 30 July 2025 at 11:15AM.
8. We note that the Tribunal website explains:

Types of hearings

Group list hearings

The majority of NCAT Consumer and Commercial Division matters are listed for first hearing in a group list where a number of matters are listed together before a Tribunal Member. Where both parties appear they are encouraged to resolve their dispute through conciliation. If conciliation is successful, the Tribunal Member will make consent orders. If conciliation is unsuccessful, or if only one party appears, the matter proceeds to hearing.

Special fixture (formal) hearings

Special fixture hearings are used when attempts at settlement have failed and more time is required to hear the case. The hearing is set for a specific length of time where the issues in dispute will be finally determined and a decision made. Special fixture hearings can run over a few hours or several days, depending on the complexity of the issues in dispute.

1. Turning to the "conciliation and hearing (group list)" on 30 July 2025, at T 2, Mr Hawkins tells the Tribunal that he was concurrently giving expert evidence at the District Court, and that the District Court judge had allowed him "to come down", but wanted him back "at 11.30am at the latest".
2. Having established that Ms Availa was present to represent the landlord, and Mr Hawkins the tenants, the Tribunal offered the parties the opportunity to "have a discussion", no doubt being a reference to a potential consensual resolution of the landlord's application.
3. A little later, the Transcript having no time recordings, Mr Hawkins informs the Tribunal that "we've had a quick chat".
4. At T [5]ff, it is then recorded:

TRIBUNAL: And have we - what - what - what have we decided? Or - did you come to an agreement or -

MS AVILA: Well, this is a subject of a lot of money that is owing in

TRIBUNAL: Okay.

MS AVILA: There's two things. There's that, plus, also Tony has got - a DA and a CC now has come in and he's got till the 4th of September to actually carry out works towards that CC hence why we require possession on the property.

TRIBUNAL: Okay. So you've put in a request for termination just for non-payment of rent and have -

MS AVILA: Possession.

TRIBUNAL: Yes.

MS AVILA: Possession as well.

TRIBUNAL: Yes. Well, that's a natural. But so - so have you - are you going to -

MR HAWKINS: We - I don't consent to that. I would want this matter to go to a hearing, and my suggestion was that we put it over until Friday the 8th of August, which is next Friday.

MR NASSIF: You still promised to next Friday. We heard this 100 million times.

TRIBUNAL: No, no, we don't have time to - like - I can make it. I can make a termination order for non-payment of rent.

MR NASSIF: Are we getting our money?

TRIBUNAL: So, is the rent still in arrears?

MS AVILA: Yes, it is.

TRIBUNAL: Okay. So yes, the - I understand the evidence of the - that's a separate matter, the DA?

MS AVILA: Yes. Yes. But that's why we also want - well, possession, definitely. But there's another reason for wanting possession.

TRIBUNAL: Yes.

MS AVILA: Is because of the - the looming expiry date of the CC.

TRIBUNAL: Yes. Yes. So this -

MR NASSIF: The DA.

TRIBUNAL: This is a termination for non-payment of rent, so I can do a termination under non-payment of rent. But for the other type of termination, I - you know, for like, if it was to terminate for a long-term tenancy. But - okay, so - so who do you want? Do you want - I have to remove - so Carmen, I remove you as a party to the proceedings - and so the email for Tony Nassif, do you want your contact

MS AVILA: Oh my contact email, yes please.

MR NASSIF: Okay. ... I'll be watching. We'll be watching that. (Indistinct)

TRIBUNAL: Just take a seat, please.

MR HAWKINS: Member, I oppose the making of a termination order in relation to arrears of rent (crosstalk) arrears of rent. The quantum of that. And also, the set offs for the building failing to meet up to certain standards.

TRIBUNAL: You have to make your own application in relation to that.

MR HAWKINS: But what happens is I'll make that application, then it comes back here and then it'll be what I have to do and have done before in this jurisdiction is go to the New South Wales Supreme Court to overturn your ruling. So I'm trying to avoid all of that -

TRIBUNAL: It's quite - I mean, the rent arrears is quite severe.

MR HAWKINS: It's - well, it's claimed to be -

MR NASSIF: Can I speak?

MR HAWKINS: - it's claimed to be that amount of money, but it's not. I challenge that.

MR NASSIF: He's buying time. Pay the $28,000 but then he saying one word like that. You're owing $28,000. The bank kicking us. We got penalty from the bank. He's going to stay there to the Supreme Court or (indistinct)? Supreme Court, yes? I'm waiting for you to disrepute.

1. At T 7ff, the Tribunal enquires whether Mr Hawkins is a tenant. He indicates that he is, as his "signature appears all throughout the lease". The Tribunal indicates "I can add you as a party" Meanwhile, Mr Nassif interjects "what's happening to him", asking:

What's happening? What's happening (indistinct). All his history. At least - is this with everybody. And what's happened. He is not honest.

MR NASSIF: I'll be watching. We'll be watching that. (Indistinct)

TRIBUNAL: Just take a seat, please.

MR HAWKINS: Member, I oppose the making of a termination order in relation to arrears of rent (crosstalk) arrears of rent. The quantum of that. And also, the set offs for the building failing to meet up to certain standards.

TRIBUNAL: You have to make your own application in relation to that.

MR HAWKINS: But what happens is I'll make that application, then it comes back here and then it'll be what I have to do and have done before in this jurisdiction is go to the New South Wales Supreme Court to overturn your ruling. So I'm trying to avoid all of that -

TRIBUNAL: It's quite - I mean, the rent arrears is quite severe.

MR HAWKINS: It's - well, it's claimed to be -

MR NASSIF: Can I speak?

MR HAWKINS: - it's claimed to be that amount of money, but it's not. I challenge that.

MR NASSIF: He's buying time. Pay the $28,000 but then he saying one word like that. You're owing $28,000. The bank kicking us. We got penalty from the bank. He's going to stay there to the Supreme Court or (indistinct)? Supreme Court,

1. We make following observations.
2. First, Mr Hawkins clearly requested an adjournment of the hearing.
3. Secondly, the Tribunal gave no explicit ruling on that application. Rather, the hearing simply proceeded.
4. Thirdly, the Tribunal gave no oral reasons for doing so.
5. Fourthly, we were not provided with a sound recording of the hearing, despite directions to do so. So it is difficult to judge the relevance, if any, of the "temperature" in the Tribunal hearing room. However, it appears from the transcript that Mr Nassif regularly interjected, notwithstanding that he had authorised Ms Avila to attend the hearing to represent him, making comments including "I'll be watching", "he's buying time"; "what's happening to him?"; "He is not honest"; "we need our money" and "16 years in gaol", all being comments directed at Mr Hawkins.
6. That could not have assisted the Tribunal in its task.
7. Group Lists are the first listing of most matters in the Consumer and Commercial Division of the Tribunal. The parties are given an opportunity to resolve their dispute, and conciliators are usually provided to assist them in doing so. If the matter resolves, the Tribunal may make orders that day. If the matter cannot be resolved, directions will be given for the filing of evidence and the matter adjourned for a final hearing.
8. On some occasions, for instance where the rental arears are significant, and the tenant asks that the matter be adjourned for a final hearing on a later date, the Tribunal will refuse such an application, with the result that the final hearing will proceed immediately.
9. In this matter, the landlord was alleging, at least orally (at T 6, per Mr Nassif) that the tenants owed the landlord $28,000. A debt of that magnitude may well have been a powerful factor for the Tribunal to refuse the tenants' application for an adjournment of the group list hearing.
10. But the Tribunal must provide reasons for doing so. The reasons may well be brief, but they must be expressed. As the Appeal Panel recently stated in SD Portfolio Holdings Pty Ltd v Todd [2025] NSWCATAP 280:

45 We accept that reasons can be brief, but to paraphrase the language of the Supreme Court in Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [86], the Tribunal's reasons in this instance failed to provide any, or any adequate, statement of the reasoning processes that led it to its conclusions. No attempt whatsoever has been made to engage with the reasoning of each expert and their conclusions.

46 In addition, in his oral submissions, Mr Widjaja referred us to Whipps v Caravan & RV Central Pty Ltd [2017] NSWCATAP 163. In that decision, the Appeal Panel noted that the Tribunal's "summary dismissal" of evidence relied on by Mr Whipps (being the evidence of his two experts), was a failure to give a proper, genuine and realistic consideration to the issue.

47 In our view, the Tribunal failed to give proper, genuine and realistic consideration to Mr Shepherd's expert evidence.

1. Here, no reasons were given orally during the hearing, nor were they given in the published reasons for decision. It appears that the Tribunal failed to give proper, genuine and realistic consideration to the tenants' application for an adjournment of the proceedings.
2. Furthermore, if a formal or final hearing were to proceed over the objection of a party, the usual course would be for the Tribunal to swear in the parties and any witnesses, receive any evidence, allow cross-examination and then proceeded to a determination of the landlord's application, giving brief reasons for the Tribunal's decision.
3. Regrettably, none of those matters were attended to on this occasion. The transcript indicates that the Tribunal ignored the tenants' application for an adjournment, did not swear in any witness, in particular Ms Avila, did not identify the evidence relied on by the landlord, did not ascertain from the tenants' representative Mr Hawkins whether the tenants had received the evidence relied on by the landlord. Indeed, at the appeal hearing Mr Hawkins gave us sworn evidence that he had not received the evidence relied on by the landlord, including never seeing a rental ledger.
4. In all these circumstances, the "hearing" miscarried, the Tribunal denied the tenants procedural fairness with the result that the orders of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination.

1. While we have set aside all the orders of Tribunal, the only live dispute remaining between the parties is the amount of rental arrears, recovery of which must be limited to $15,000.
2. We encourage the parties to try and seek a resolution of this issue.
3. At the appeal hearing, the landlord strongly argued that Mr Hawkins should never have been joined (as a tenant) to the landlord's application by the Tribunal.
4. The issue of whether or not Mr Hawkins is a proper party to the proceedings can be agitated at the first directions hearing of Tribunal of the remitted matter.

(1) The appeal is allowed.

(2) The orders of 30 July 2025 in proceedings 2025/000253784, are set aside.

(3) The matter is remitted to the Consumer and Commercial Division of the Tribunal for redetermination.

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.

[1] And ordering all parties to give Mr Hawkins any material they lodged with the Tribunal, a redundant order given that proceedings were heard and determined that day.