Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121;

1. The relevant legislation governing the tenancy agreement between the appellant and the respondent is the Residential Tenancies Act 2010 (NSW) (RTA).
2. Section 51(2)(a) of the RTA provides that the tenant must keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy.
3. If there is a breach of the tenancy agreement a landlord may give the tenant a termination notice. At the time the notice of breach was given by the respondent to the appellant, the relevant provision of the RTA was s 87, which stated:

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.

**Note - **

Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.

1. By the time the proceedings came to be determined by the Tribunal, the RTA had been amended and s 87 was replaced by s 87C. However, under the transitional provisions in Sch 2, the provisions relating to termination and Tribunal proceedings continued to apply in respect of any termination notice given prior to the amending legislation. As such, the Tribunal correctly applied the relevant provisions of the RTA.
2. The additional matters to be considered in social housing matters are set out in s 154E, which states:

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.

1. Section 187 sets out the orders that may be made by the Tribunal and relevantly provides:

(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders -

(a) an order that restrains any action in breach of a residential tenancy agreement,

(b) an order that requires an action in performance of a residential tenancy agreement,

(c) an order for the payment of an amount of money,

(d) an order as to compensation,

(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,

(h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations,

(i) a termination order or an order for the possession of premises,

(j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.

Background and proceedings before the Tribunal at first instance

1. The following matters are not in dispute and are evidenced by the documents provided by the respondent to the Tribunal at first instance and by copies of the orders made by the Tribunal, which were provided by the respondent to the Appeal Panel in the tender bundle (referred to below).
2. The appellant has been a social housing tenant for over 40 years and has been living in the residential premises the subject of the dispute since 2020. She entered into a residential tenancy agreement with the respondent on 23 April 2020. Under cl 14.1 of the agreement, the appellant agreed "to keep the premises reasonably clean".
3. By letter dated 18 September 2024, the respondent gave notice of termination of the residential tenancy agreement on the grounds that the appellant was in breach of the tenancy agreement, and the residential premises was "not being maintained in a reasonable state of cleanliness" putting the appellant and neighbouring residents "at risk". The particulars of breach provided in the notice were:

That you have failed to keep the property in a clean, safe and habitable state and have failed to rectify these breaches of the tenancy agreement.

1. The notice refers to a client service visit on 23 July 2024; a warning letter issued on 25 July 2024 and a further inspection that was conducted on 8 August 2024. The appellant was required to give the respondent vacant possession on 13 October 2024.
2. The appellant did not vacate the premises and on 14 October 2024, the respondent commenced proceedings in the Tribunal seeking orders restraining any action in breach of the residential tenancy agreement (s 187(1)(a) RTA), an order that requires action in performance of the residential tenancy agreement (s 187(1)(b) RTA), an order that the appellant perform such work or take such other steps as the order specifies to remedy a breach of the agreement (s187(1)(e) RTA) and, finally, an order for possession of the premises (s 187(1)(i) RTA).
3. The proceedings came before the Tribunal on 3 December 2024, on which day the hearing was adjourned with directions that the appellant "take all reasonable steps to improve the property care of her dwelling including the yard". The proceedings again came before the Tribunal on 11 April 2025 and the presiding member, who is the member who made the decision on 28 August 2025, adjourned the hearing to a date to be fixed and noted as follows:

"a. the tenant is willing to engage with Catholic Care to assist with property care issues

b. if there is not significant improvement in property care by the inspection on 16 May 2025 and/or engagement with Catholic care or other support services, then it is likely that the tenancy will be terminated"

1. The proceedings came before the Tribunal for hearing on 2 June 2025, on which day the decision was reserved. The Tribunal also noted, as follows:

"2 The tenant is strongly encouraged to do what she can to obtain, as soon as possible, approval from My Aged Care for engagement with the Hoarders and Squalor program.

3 Should the tenant make significant improvements to the state of property care, she is encouraged to communicate with the landlord to see if it might no longer seek termination of the tenancy. The Hunter Tenants Advice and Advocacy Service may be able to assist the tenant in this regard."

1. The Tribunal's written reasons were delivered on 28 August 2025.

1. The Tribunal set out the background [3]-[5], noting that on 20 April 2022 and 11 August 2023, specific performance orders were made by the Tribunal requiring the tenant (now the appellant) to comply with the terms of the tenancy agreement by "keeping the premises in a reasonable state of cleanliness, both inside and out". The Tribunal further noted [6] that the landlord (now the respondent) subsequently applied for a termination order and that the hearing of the application commenced on 11 April 2025 and was adjourned part heard. The tenant had indicated she was willing to engage with Catholic Care to assist with the property care issues and arrangements were made for a property inspection in May 2025. The hearing resumed on 2 June 2025.
2. The Tribunal then set out the relevant legislation under the RTA, correctly in our view, at [5] and [7]−[8], extracting ss 51(2)(a), 87 and 154E in their entirety.
3. The Tribunal recorded the evidence and submissions made by the respondent [9]−[11] to the effect the property was not in a clean, safe and habitable state, poor property care had existed since the beginning of the tenancy and had persisted notwithstanding previous notices of termination and specific performance orders made. Hoarding and poorly kept yards and gardens increased the fire risk to the tenant and repairs were needed to the property [12] and overgrown gardens and excessive goods stored in the yard impacted the neighbours [13].The respondent submitted that not terminating the tenancy would affect its ability to prevent further breaches from the tenant and similar breaches from other tenants in the surrounding neighbourhood [14].
4. The Tribunal then outlined the evidence and submissions of the appellant (as the tenant) at [15]−[19], noting her personal circumstances, history of abuse addiction and health issues and the progress she had made in her life. The Tribunal noted that the appellant had accumulated a lot of belongings in her time, had broken her leg when she relocated and could not properly move into the property at the time. She had children but they could not assist her with the property nor with the housing if the tenancy was terminated. The Tribunal noted at [19] that appellant had physical challenges, but she was taking steps to clean the property and sort out her belongings. She had contacted Catholic Care who advised her to arrange a funding assessment with My Aged Care.
5. The Tribunal considered each of the matters set out in ss 87(5) and 154E of the RTA at [22]−[29].
6. The Tribunal was satisfied that the breach was very serious and had persisted for many years [22] and further found that the state of the property was adversely affecting neighbours and was likely to continue as the breach had persisted for some time with no significant improvement [23]. The Tribunal found that the landlord had attempted to work with the tenant to address the issues and that she had in the past declined offers of assistance [24]. The tenant was in breach of specific performance orders previously made by the Tribunal [25]. While the Tribunal noted the appellant's evidence of the steps she had taken to address the issues, and that she was applying for funding through My Age Care [26], the Tribunal found at [27] as follows:

I am not satisfied there has been significant improvement in the state of cleanliness at the property. I expect she would be unable to satisfactorily rectify the breach without significant professional assistance.

1. The Tribunal noted the appellant's personal circumstances and stated at [28] that the Tribunal had "no doubt" the termination of the tenancy would cause significant hardship to her and that she would be likely to be homeless, which would have particularly adverse consequences in light of her history and personal circumstances.
2. Despite this, the Tribunal found at [29]:

Taking all of these matters to account, I am satisfied on balance that the tenancy should be terminated. The likely significant hardship to the tenant is outweighed by the other factors set out above in favour of termination, particularly the nature and extent of the breach persisting over a significant period, with the associated safety and property damage concerns.

I am satisfied that the tenant has been given a termination notice in accordance with the Act, that she has not vacated the premises, that she has breached the tenancy agreement and the breach is, in the circumstances of the case, sufficient to justify termination

of the agreement. I am satisfied that the termination order should be made.

1. The Tribunal allowed the appellant a period of six weeks for possession and was satisfied that this was warranted in the exceptional circumstances of the case, noting, in particular, the appellant's circumstances.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party may appeal the decision of the Tribunal at first instance as of right, on any question of law, or with the leave of the Appeal Panel on any other grounds.
2. If a party does not raise a question of law, the party must seek, and be given, leave to appeal from a decision of the Tribunal at first instance.
3. The circumstances in which the Appeal Panel may grant leave to appeal under s 80(2)(b) from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

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

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

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

1. Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban, at [84], the Appeal Panel stated that the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact and, ordinarily, it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. In summary, an appeal must raise a question of law or be permitted by the Appeal Panel on other grounds with leave to appeal. If there is no question of law, appeals against a decision of the Consumer and Commercial Division must first meet the 'gateway' in 12(1) of Sch 4 of the NCAT Act and, if so, the Appeal Panel must then consider whether to exercise discretion to grant leave having regard to the principles outlined in Collins. Relevantly, an internal appeal is not an opportunity for the losing party to re-litigate the party's case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10] (Ryan).

1. As noted, the appellant was legally represented at the time she filed her Notice of Appeal and applied for the stay of the orders for possession.
2. In her Notice of Appeal, the appellant seeks leave to appeal and contends there is significant new evidence now available that was not reasonably available at the time of the hearing. This evidence includes evidence of steps taken by the appellant to remedy the breach, including photographs of the condition of the property at the time the appeal was lodged and evidence that the appellant has engaged with services, Catholic Care, who have been assisting her to remedy the property care concerns of the respondent. Attached to the Notice of Appeal and stay application are photographs of the condition of the property which it is contended show a marked improvement from the evidence submitted to the Tribunal at first instance by the respondent. It is also contended that further photographs are available showing the condition of the premises and leave would be sought to provide this evidence to the Tribunal at a later stage.
3. Legal Aid NSW contends that this evidence was not reasonably available at the time of the hearing because the appellant was attempting to engage with relevant support services and was at the intake stage of that engagement. The evidence was not reasonably available because it did not exist at the time of the hearing on 2 June 2025. While this evidence did not exist at that time, it did exist after the hearing and could have been made available before the decision was made by the Tribunal. It is further contended that by the time the decision was handed down there had been significant improvement in the condition of the property and this was evidence that could reasonably have resulted in a different and more favourable outcome to the appellant.
4. Legal Aid NSW submits that if the appellant is not entitled to rely on this evidence or to rely on further evidence, this would result in an injustice which is reasonably clear, resulting in a substantial miscarriage of justice. The appellant would be deprived of a chance that was fairly open to her to achieve a better outcome than that which occurred.
5. Written submissions in support of the extension of time were provided at the time the appellant lodged her appeal. We have outlined those submissions below in dealing with the appellant's application for an extension of time.
6. In her oral submissions, the appellant says that she did not lodge any further material with the Appeal Panel because she had not realised that she needed to provide this prior of the hearing. She said that Legal Aid NSW were no longer acting for her. The appellant said she could not understand why she was confined to providing new evidence to the Appeal Panel. She wanted the Appeal Panel to consider her case on the merits as she did not understand why her lease was being terminated because the property was not clean. She believed the respondent was making an example of her as there were other tenants who did not have clean properties. It was unfair and unjust on a human level that she was being evicted as she is a good person, she has lived in social housing for over 40 years, and it would be very hard for her to have to move. She had been trying to improve the cleanliness of the property. She said that she had attempted to get assistance from the Hunter Advocacy Service, but they had not assisted her, and this had caused her to be very anxious. She also said that she attempted to obtain assistance from Catholic Care, but it took up to six weeks for Catholic Care to assist her. She did not believe that the decision would be made on 28 August 2025 and wanted the Appeal Panel to consider her case afresh.

1. In its reply to appeal, the respondent contends that leave should not be granted. The decision was not against the weight of evidence, and the outcome was fair and equitable. The respondent rejects the claim that the further evidence the appellant seeks to rely on is significant because the appellant's failure to maintain the premises has been the subject of orders going back to 2022, as referred to in the Tribunal's decision at [4]. The concept of a substantial miscarriage of justice in Collins v Urban refers to the failure in the way a matter was conducted or decided that deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. The Tribunal at first instance made reference to the steps the appellant had taken to engage Catholic Care at [6] and [19]. It cannot be said that the appellant's further evidence is "new" or "significant". The respondent submits the decision should be upheld and the appeal dismissed. The respondent further submits that the appellant should not be given an extension of time to lodge her appeal and that leave to appeal should be refused.
2. In written submissions filed on 13 February 2026, the respondent contends that the respondent has since undertaken a further inspection of the property, which shows the property is still unclean, untidy and unsafe. This evidence was filed by the respondent in its bundle of tender documents (referred to below), and the respondent relies on this evidence in response to the new evidence sought to be relied on by the appellant.
3. The appellant asserts one ground of appeal based on "new evidence", but the respondent submits this ground holds no weight. The respondent relies on the principles set out by the Appeal Panel in The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 (JPG Investments) and distinguishes the authority referred to by DP Sarginson of Claydon v NSW Land and Housing Corporation [2015] NSWCATAP 192 (Claydon) on the grounds that the new evidence directly related to circumstances which existed at the time of the hearing and that the effect of the new evidence would likely have had an impact on the outcome of the Tribunal proceedings. It is submitted that this is not the case here because the new evidence relates to circumstances, being the condition of the premises since the hearing, which did not exist at the time of the hearing.
4. The respondent opposes the tender of the new photographs and further submits that the photographs provided by the appellant are of poor quality and, taken at their highest, demonstrate that the appellant has not taken steps to rectify the condition of the property - they cannot be taken to be of a significant nature. The responded submits that the appellant's evidence that she is engaged with Catholic Care is evidence she relied on at first instance. This evidence was sufficient for the Tribunal to make an informed decision. Relevantly, the Tribunal noted that the appellant's failure to maintain the premises had been the subject of orders by the Tribunal dating back to 2022 and made reference in the written reasons to the steps the appellant had taken to engage Catholic Care. The termination order was made in the appellant's presence, and she had sufficient opportunity to adequately put her case. The Tribunal considered all matters set out in ss 87 and 154E of the RTA in exercising its discretion.
5. In oral submissions, the respondent further contends that if the appellant had wanted to rely on new evidence or a change circumstances after the hearing, she could have sought to reopen the case, but she did not do so. In any event, the "new" evidence would not warrant a change in the outcome.

1. The material before the Appeal Panel comprised the Notice of Appeal, with detailed grounds of appeal attached, the Reply to Appeal, written submissions of the respondent, documents relating to the stay application and a tender bundle provided by the respondent. The tender bundle comprises the documents which were relied on before the Tribunal at first instance and relevantly includes a client service visit checklist dated 23 July 2024 (with photographs attached) and a property care inspection document dated 8 August 2024, also with photographs attached. These photographs show rooms that are full of rubbish and other household items and are very cluttered. The photographs of the front yard reveal significant stockpiles of household rubbish and furniture in the yard.
2. The evidence relied on by the appellant in support of her appeal and stay application includes a statement dated 16 October 2025 setting out her personal circumstances and details of some of the steps she has and is taking to resolve the property care issues. She states that she has organised for two containers to be delivered so she could fill them with excess things at the property. The appellant also states that she has removed the chicken house, the fencing and boats from the front yard and had someone come in to clean the gutters. She has engaged with Catholic Healthcare's hoarding and squalor program and has made "much progress" picking up and removing the containers.
3. The appellant also provided a letter from Catholic Healthcare dated 5 September 2025 which states that the appellant has been a client in the assistance and care and housing program since 2 July 2025, that services commenced on 7 July 2025 and that the appellant had worked diligently with a technician who was assisting her with the inside of the home to create "a safer and more assessable living space". The letter notes that it was proposed the technician assisting the appellant, who was on annual leave at the time the letter was written, would recommence assisting on 22 September 2025.
4. Seven photographs dated 8 September 2025 were provided of the inside of the house which showed cluttered rooms, although the items in the rooms were in piles and the floors were not completely covered as they were in the earlier photographs provided to the Tribunal at first instance. There were photographs of numerous boxes stacked on top of each other with labels containing, for instance, dog leads and the appellant's medicine. On 14 October 2025, the appellant provided a further photograph which showed part of the front yard to be in a relatively tidy state. However, this was only one section of the yard and the whole of the front or back yards were not visible.
5. The appellant did not provide any further evidence or written submissions.
6. Given the issues raised by the appellant in the notice of appeal and the stay application, the respondent sought to rely on a client service visit checklist dated 18 December 2025 in relation to an inspection of the premises on that date. In view of the decision we have come to about leave to appeal, as explained below, we do admit this further evidence from the respondent.

Should the appellant be given an extension of time to lodge the appeal?

1. In Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]-[22], the Appeal Panel identified the matters to be considered when determining whether time should be extended. These matters include the length of the delay, the reason for the delay, the appellant's prospects of success the extent of any prejudice suffered by the respondent and whether strict compliance with the rules would work an injustice to the appellant.
2. The appellant says she was served with the decision on 3 September 2025. She accepts that she requires an extension of time to lodge the appeal but submits that an extension should be given. She took immediate steps to obtain legal advice once she was received the decision and filed an application to set aside the decision on 9 September 2025. This application was dismissed by the Tribunal on 22 September 2025 and, despite the fact that this was the wrong application, the respondent was on notice that the appellant was seeking to challenge the decision. The appellant contacted Legal Aid NSW for advice, which was provided to her on 2 October 2025. She then filed her notice of appeal on 8 October 2025. It is submitted that the respondent would not suffer significant prejudice if the extension of time is granted as it would not be able to immediately re-let the premises. On the other hand, if the extension of time is not granted, the appellant would be made homeless in circumstances where she has reasonable prospects of successfully appealing the decision.
3. The respondent opposes the extension of time. It is submitted that the appellant delayed until the orders for possession were made on 18 September 2025. It is further submitted that the appellant had ample opportunity to obtain legal advice yet delayed in filing the appeal until 8 October 2025. There is prejudice to the respondent because social housing is a critical resource in New South Wales − if the appellant's applications for a stay and appeal is accepted out of time, other vulnerable person or family need of social housing will be prevented from occupying the premises. It is further submitted that the appellant's prospects of success are limited.
4. While we note that there has been delay by the appellant in lodging her appeal, she has provided a reasonable explanation for her delay and in fact lodged an application to set aside the decision, which was the wrong application, on 9 September 2025. The appellant thereby signalled her intention to challenge the decision and after this application was dismissed, took steps to obtained legal advice. She has already obtained a stay, and her case is at least arguable, as evidenced by the stay. We accept there is prejudice to the respondent in extending time but, having already obtained the stay, the prejudice in allowing the appellant to prosecute her appeal, is limited. Having regard to these matters, we have decided to extend time for lodging the appeal to 8 October 2025.

1. An issue that arises from the respondent's submissions is the nature and scope of cl 12(1)(c), Sch 4 in the context of leave to appeal under s 80(2)(b) of the NCAT Act.
2. The respondent contends that the ground for leave on the basis that "significant new evidence has arisen" that was not reasonably available at the time the proceedings under appeal were being dealt with does not extend to evidence about events occurring after the hearing. The respondent relies on Collins v Urban and JPG.
3. In Collins v Urban, the Appeal Panel, constituted by the then President, Wright J, and Deputy President Westgarth and Principal Member Harrowell, as they both were at the time, considered the principles to be applied in the Consumer and Commercial Division for leave to appeal.
4. As observed by the Appeal Panel in Collins v Urban at [65]−[68], the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that the appellant may have suffered "a substantial miscarriage of justice" because of any one of the three matters set out cl12(1) of Sch 4 of the NCAT Act. The Appeal Panel observed that this clause appeared to be based on the provisions of s 68(2) of repealed Consumer Trader and Tenancy Tribunal Act 2001 (NSW) which permitted the Tribunal to grant a rehearing. Clause 12 does not require the Appeal Panel to be satisfied that the appellant actually suffered a substantial miscarriage of justice − all that is required is that the appellant "may" have suffered such a miscarriage.
5. The Appeal Panel went on to consider the meaning of a "substantial miscarriage of justice" in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW), referring to the High Court decision of Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 in the context of the statement made by the High Court that in a criminal trial "every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence a strictly followed" such that "[I]f there is any failure in any of these in any of these respects, the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice". Relying on this passage High Court decision, the Appeal Panel found at [71]:

From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter has was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.

1. However, this was not the only reference to a substantial miscarriage of justice by reference to the criminal context and, relevantly, the Appeal Panel further stated at [72]:

72. A similar understanding of a miscarriage of justice is evident in cases which relate to an application for a new trial based upon fresh evidence becoming available. In Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, Gibbs CJ considered what degree of likelihood was required that a different, more favourable result would have been achieved in order for there to have been a miscarriage of justice. The Chief Justice rejected the approach that the "bare possibility" of such a result was sufficient as well as finding that it was too severe to require that a different result was "likely" or "would probably" have been achieved. Gibbs CJ, at 399, agreed with the view expressed by Mason and Deane JJ in that case (at 402):

the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.

(underlining added)

1. The Appeal Panel again referred to Gallagher at [73], noting that the High Court stated the court will grant a new trial if, "having approached the matter with caution.... and having weighed the credibility of fresh evidence and its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably reached a different verdict if the evidence had been available at the trial". This is a further articulation of when there will be a substantial miscarriage of justice in the criminal context where there is fresh evidence. The Appeal Panel concluded as follows:

74. This indicates that there will be a substantial miscarriage of justice where the fresh evidence was such that there was a "significant possibility" that a different, more favourable result would have been achieved if the evidence had been before the Court. There does not appear to be any difference of consequence between a "significant possibility" and a "chance which was fairly open" (to use the expression adopted in Mraz) of achieving a more favourable result.

75. The conclusion and the reasoning in Gallagher are directly applicable to cl 12(1)(c) which relates to a substantial miscarriage of justice because significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. There is no reason of principle why it would not be appropriate to adopt the same approach in relation to the other aspects of cl 12(1).

76. Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. The Appeal Panel then went on to consider the general principles on the grant of leave at [80]−[84] summarising the general principles at [84] as referred to above.
2. When all relevant extracts of Collins v Urban are considered, it can be seen that the Appeal Panel contemplates that an appellant may suffer a substantial miscarriage of justice on two grounds, the first arising from the conduct of the hearing and the second arising from fresh evidence, with both potentially falling within cl 12(1) of Sch 4.
3. The respondent relies on JPG and extracts the findings of the Appeal Panel at [167] - [170] as follows:

167. An appellant does not have an unfettered right to adduce fresh evidence about events that have occurred subsequent to the hearing. As the Appeal Panel stated in Chapman v McLaughlin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.'

168. The ability to adduce fresh evidence arises in the context of the Tribunal's powers to grant leave to appeal under cl. 12 of sch 4 of the NCAT Act. In that statutory context, the Tribunal must be satisfied that the appellant suffered a "substantial miscarriage of justice" in the sense there was a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred if the fresh evidence of Mr Clee had been before the Tribunal at first instance (Collins v Urban at [76]-[79]).

169. Further, the "concept of substantial miscarriage of justice refers to the failure in the way a matter was conducted or decided that which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred" (Collins v Urban at [71]). The concept focuses upon the manner in which the hearing was conducted or decided, not fresh events that have occurred since the date of the Tribunal hearing.

170. The purported new evidence must not only be "significant," but it must also be evidence that was unavailable at the date of the hearing in the sense that "no person could reasonably have obtained the evidence" (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]).

1. It is important to note that in JPG, the Appeal Panel was dealing with the contention that the appellant should be entitled to rely on fresh evidence about the vacancy of the commercial premises which was said to have been impacted by the development application. The new evidence was about the efforts made after the hearing to obtain a long-term tenant and the concerns expressed by those potential tenants about the uncertainties created by the proposed development application. This evidence was about events arising after the hearing. However, the evidence was still about factual matters that were in existence at the time of the hearing, which is why the Appeal Panel focussed on concerns about finality [167] and about whether the evidence was unavailable at the time of the hearing in the sense that "no person could reasonably have obtained it" [170].
2. In Claydon, the Appeal Panel considered leave to appeal should be given because Ms Claydon may have suffered a substantial miscarriage of justice because significant new evidence had arisen. The significant new evidence was that the Director of Public Prosecutions (DPP) had decided to withdraw a more serious charge of "supply drugs" so that Ms Claydon's ultimate conviction was for a lesser offensive of "possess prohibited drugs". The relevance of this was that the termination of Ms Claydon's residential tenancy was based on s 91 of the RTA which provides that the Tribunal may make a termination order if satisfied that a tenant has intentionally or recklessly caused or permitted their premises to be used for the supply of any prohibited drug. The respondent, NSW Housing, argued that Ms Claydon's version of events was evidence available at the time of the hearing and that the purported new evidence related to factual matters that occurred after the making of the decision under appeal and, as such, did not constitute new evidence within the meaning of cl 12(1)(c). It was further submitted by NSW Housing, similar to the current submission that has now been made in opposition to the appeal, that a fact not in existence at the time of the hearing can never be said to constitute "new evidence" for the purpose of cl 12(1)(c).
3. The Appeal Panel rejected this proposition, noting at [27]:

This submission implies that unless a fact was in existence (but not reasonably discoverable) at the time of the original hearing it cannot later be adduced as "new evidence".

28. There is nothing in the language of the provision to support the restrictive interpretation Counsel for NSW Housing urges us to adopt. Nor, as argued by Counsel, does QP v RP [2014] NSWCATAP 59 at [35] - [37] support such interpretation. That decision concerns an appeal against a decision made by the Guardianship division of NCAT. Clause 12(1)(c) of Schedule 4 does not apply to appeals from that Division. The cited passage relates to s 80(3)(b) of the Act which concerns the power to permit "fresh evidence" in an appeal.

29. There can be no argument that Ms Claydon's version of events surrounding her arrest is not "evidence" that is "new in the sense that it was not reasonably available at the time the proceedings below". However, the subsequent decision by the DPP to withdraw the more serious charges of supply prohibited drugs and Ms Claydon's conviction for the lesser offences of possession, in our view is evidence that is both new and significant.

30. It is new because it was not available at the time of the original hearing. And it is significant because if Ms Claydon had been charged in the first place with mere possession of a prohibited drug, the application to terminate her lease may never have been made. In our view, the threshold test has been met.

...while not determinative, the availability of the new and significant evidence of Ms Claydon's conviction of the lesser charge of possessing prohibited drugs in our opinion means that there is a "chance which was fairly open" that if the matter were to be adjudicated the application to terminate the tenancy agreement might be dismissed.

1. This issue was again considered by the Appeal Panel in Ferguson v Mission Australia [2024] NSWCATAP 183, where the tenant sought to rely on evidence that her daughter and partner had vacated the premises, being evidence about an event which occurred after the hearing on 15 May 2024. The Appeal Panel stated that this evidence could not have been before the Tribunal hearing because events had not yet occurred [86]. The Appeal Panel also noted that the hearing occurred on 15 May 2024, and the decision was reserved and published on 20 June 2024. According to the Tribunal, if the tenant sought to adduce fresh evidence about events occurring subsequent to the hearing, she could have made application to be granted leave to re-open her case and she did not do so [87]. The respondent makes a similar submission in this case.
2. The Appeal Panel distinguished the facts in Claydon from the facts in the case before it as follows:

90. In our view the circumstances in Claydon are distinguishable from the present. There, the new evidence, although it came into existence after the hearing, directly related to the circumstances which existed at the time of the hearing (ie the offences for which the tenant had been charged). The effect of the new evidence was that the tenant was not guilty of the more significant offences which formed the basis of the termination application. Therefore, the new evidence would likely have had an impact on the outcome of the Tribunal proceedings. Here, the new evidence could not have resulted in a different outcome because it related to circumstances (ie the tenant's daughter vacating the premises) which did not exist at the time of the hearing.

1. We do not agree that cl 12(1)(c) calls for such a distinction to be made, namely, that the circumstances related to the new evidence must have existed at the time of the hearing. On one view, such circumstances will always be in existence at the time of the hearing if those circumstances are relevant to the determinative issues at first instance.
2. Clearly, there is a correct and proper concern about finality of litigation. For example, a losing party might seek to alter the result in the primary proceedings by taking action to try and better its position in the light of the reasons for decision. However, in our view, the tests under and in connection with clause 12 (1) (c) of "significant", "reasonably available" evidence and a "substantial miscarriage of justice" provide the correct tests in relation to this concern.
3. We agree with Claydon that there is nothing in the language of cl 12(1)(c) or in the principles set out in Collins v Urban that compels this more restrictive interpretation or that new evidence for the purposes of cl 12(1)(c) only relates to a fact that was in existence at the time of the hearing but was not, as the Appeal Panel said in Claydon, "reasonably discoverable". In our view, this is an unduly narrow interpretation of cl 12(1)(c). The relevant issue under cl 12(1)(c) is whether the evidence is new "being evidence that was not reasonably available at the time the proceedings below were being dealt with" and significant in the sense that the evidence goes to the determinative issue about the underlying claim which, as found in Claydon, may not have resulted in the order to terminate being made (refer Claydon at [30]). Evidence about an event occurring after a hearing may still be significant new evidence within the terms of cl 12(1)(c) if it is evidence where there is a "significant possibility" or "a chance that was fairly open" that a different and more favourable result would have occurred (refer Collins v Urban at [71]). That is the critical issue.
4. Having regard to the evidence now provided by the appellant, we are not satisfied that this evidence is "significant".
5. In the first place, in circumstances where the appellant had been provided with an extensive opportunity to remedy the breach by the time the hearing had concluded, it is difficult to see how any steps to remedy that occurred as late as those the subject of the "new" evidence could be capable of altering the outcome.
6. In any event, the "new" evidence lacks any persuasive power. It is evidence that draws on and is similar to evidence that was already before the Tribunal at the time of the hearing. The evidence that the appellant had connected with Catholic Care but was still waiting to be taken on was evidence before the Tribunal at the hearing. While the further evidence from Catholic Care about the positive steps being taken by the appellant is new evidence in the sense that the Catholic Care intervention was after the hearing, the evidence is equivocal and vague. The letter from Catholic Care dated 5 September 2025 is to the effect that services commenced on 7 July 2025 and the appellant had worked "diligently" with a technician who was assisting her with the inside of the home to create "a safer and more assessable living space". However, the letter does no more than confirm that the appellant was taking steps to declutter her property and more work would be undertaken in the future when the technician returned from leave.
7. The appellant's statement of 16 October 2025 says she has taken steps towards decluttering the property, yet the photographs provided do not support her contention that significant progress has been made. We accept the submissions of the respondent that the photographs relied on show, at their highest, some improvement but also reveal that at the time of the photographs the premises were cluttered and untidy, both inside and out.
8. In the decision dated 28 August 2025, the Tribunal noted that the appellant was seeking to engage with My Aged Care to get professional assistance but also noted that the breaches had persisted for many years and at least since 2022. The Tribunal found at [27] that the appellant would be unable to satisfactorily rectify the breach without significant professional assistance. The letter from Catholic Care reveals that the appellant had "significant professional assistance" from July to September 2025, yet the photographs provided do not evidence significant improvement. Furthermore, the appellant did not provide to the Appeal Panel, as foreshadowed in her earlier submissions, more recent photographs evidencing further improvement. Instead, the appellant questioned why she was being evicted because her property was not clean.
9. For reasons mentioned earlier, we also do not consider that the "new" evidence was not reasonably available to the appellant as required by cl 12 (c). Plainly, the actual evidence did not exist at the time of the hearing. However, the appellant was provided with an ample opportunity to present evidence of steps to remedy the breach before the conclusion of the hearing. It was made clear that this was an important issue.
10. Finally, for the reasons already given concerning "significant" evidence and the "reasonably available" question, we are not satisfied that the appellant may have suffered a substantial miscarriage of justice if the decision stands. We are not satisfied that the appellant will be deprived of a chance that was fairly open to her to achieve a better outcome than that which occurred if leave is refused.
11. We also note that in her oral submissions the appellant requests that she be given leave to appeal so that the Appeal Panel can hear this matter afresh. We reject this submission. The appellant must first establish the grounds in cl 12, Sch 4 and then satisfy the Appeal Panel that leave should be granted. An appeal is not the opportunity to re-litigate a case that has been determined by the Tribunal at first instance.
12. Accordingly, leave to appeal is refused.

1. The Appeal Panel granted a stay of the operation of the order made by the Tribunal on 28 August 2025 until further order of the Tribunal or finalisation of the appeal, whichever is the earlier. As the appeal has now been finalised in favour of the respondent, it is unnecessary to make any orders in relation to the stay, which will lapse.
2. We make the following orders:

(1) The appellant is given an extension of time to lodge her appeal to 14 October 2025.

(2) Leave to appeal is refused.

(3) The appeal is dismissed.

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.