Hodgson v Shaw

"I am seeking an adjournment as I have secured full time employment and start date, training and orientation start on the 26th May and cannot attend the tribunal hearing at 2:15pm on 26th May 2025. Securing full time employment and secure housing has been my priorities and due to the timeline I have been unable to negotiate a delayed start date.

I have received confirmation of the schedule yesterday 22 May 2025 and attached it for reference. Attached documents contain personal and confidential information.

I had reached out to the applicant and attached correspondence response below.

Evidence to support my case was posted 4 weeks ago and according to the applicant not received. I will be delivering that evidence to the tribunal offices personally today and sending an electronic copy to the respondent.

I am seeking adjournment for 2 weeks so I can request a day off to attend the tribunal. I will have to take a day off without pay to attend as my work schedule is Monday to Friday rostered shifts between 6am and 8pm.

1. Emails to the landlord, attached by the tenant to the adjournment application, show that at least by 8 May 2025 he was aware he would be required to attend his new employment on 26 May 2025. The landlord opposed the adjournment.
2. On 23 May 2025, at 1.18 pm a Registry officer replied to the tenant:

"Your request to adjourn the Tribunal hearing has been received too late to be determined by a Tribunal Member prior to the hearing.

You should attempt to contact the other party to seek their written consent to the adjournment. Your request will be considered on the day of the hearing and you will be notified in writing of the Tribunal's decision.

Your email has been forwarded the presiding Tribunal Member for hearing on Monday 26/5/2025 at 2:45PM."

1. The tenant did not communicate further with the Tribunal regarding the adjournment request.
2. The hearing proceeded on 26 May 2025 in the absence of the tenant. The landlord appeared in person.
3. The Tribunal made the following orders on 26 May 2025:

"1 The Tribunal is satisfied the parties have been notified of today's hearing and had an opportunity to be heard.

2 The respondent did not appear and the Tribunal considers it appropriate to deal with the matter in the absence of the respondent.

3 The Tribunal orders that the respondent Matthew Shaw is to pay the applicant Jordan Hodgson the sum of $9,557.29, on or before 02 June 2025.

1. The orders record that oral reasons were given for the decision.
2. On 2 June 2025, the tenant lodged an application to set aside or vary the decision.
3. On 13 June 2025, the Tribunal made the following order ("the set aside order"):

"1 The application to set aside the orders has been considered and is granted.

a. The orders made on 26 May 2025 are set aside and the proceedings are reinstated as the respondent Matthew Shaw has provided a reasonable explanation for their failure to appear."

1. In deciding the appeal, we have had regard to the following:

(1) Notice of Appeal filed 23 June 2025

(2) Reply to Appeal filed 8 July 2025

(3) Statement by Jordan Hodgson dated 17 February 2025 submitted for the Tribunal hearing, totalling 94 pages, including annexures;

(4) Statement by Jordan Hodgson dated 16 July 2025, totalling 55 pages, including exhibits;

(5) Tenant's submissions on appeal filed 13 August 2025, totalling 56 pages; and

(6) Tenant's submissions filed with the Tribunal on 30 June 2025 in relation to the landlord's originating application 2024/00476885.

1. The Notice of Appeal was lodged within the 14 day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The Notice of Appeal identifies 3 grounds of appeal.
3. Ground 1 states that the landlord was denied procedural fairness because he was not provided with notice of the set aside application, nor an opportunity to respond.
4. The landlord is self-represented. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal."

1. Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) says relevantly:

"(1) ... the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if -

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

(3) Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made.

(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this section unless the Tribunal has -

(a) given the parties an opportunity to make submissions about the proposed order, and

1. The use of the word "may" in regulation 9 (1) means that a decision to set aside a decision is discretionary.
2. A decision made in the exercise of a discretion can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506.
3. Those circumstances include a mistake of law by the Tribunal (YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55, at [26]-[27]; GTK v NSW Treasury [2025] NSWCATAP 174, at [23]).
4. The nature and extent of the Tribunal's jurisdiction and whether it had power to make an order under legislation is a question of law (David Falzon t/as The Tilers Floor and Wall Specialists v Brian Tedman & Janelle Tedman [2014] NSWCATAP 102 at [28]).
5. The parties did not consent to the making of the set aside order. It is common ground that the Tribunal did not provide the landlord with an opportunity to provide submissions regarding the set aside application.
6. It follows that, considering regulation 9(4), the Tribunal did not have the power to make the set aside order of 13 June 2025. This is an error of law.
7. An appeal from a decision of the Tribunal (including an ancillary decision) 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) of the NCAT Act).
8. The set-aside decision is an "ancillary decision" as defined in s 4 of the NCAT Act: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 ("Ozzy") at [25]-[40] and Li v Zhang [2016] NSWCATAP 268 at [5].
9. Leave is therefore not required, and we allow the appeal.
10. There is therefore no utility in considering the other grounds of appeal raised by the landlord.

1. Under s 81 of the NCAT Act, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for the decision under appeal to be varied (s 81(1)(b)), or quashed or set aside and another decision substituted for it (s 81(1)(d)).
2. Section 81(2) provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal, and may exercise such functions on grounds other than those relied upon at first instance. Further, if the grounds of appeal so warrant, the Tribunal may conduct a new hearing under s 80(3)(a) of the NCAT Act.
3. By the Appeal Panel's orders at the callover on 9 July 2025, the parties were put on notice that the appeal may be dealt with by way of a new hearing, and the parties were directed to prepare for the appeal accordingly.
4. The Appeal Panel was provided with all the documents both parties rely on in relation to the tenant's set aside application. We also have the benefit of their oral arguments.
5. It is 10 months since the landlord filed the originating application in the Tribunal.
6. It is therefore appropriate for the Appeal Panel, based on the parties' material and their submissions, to determine whether to set aside the Tribunal's decision of 26 May 2025 that the tenant pay the landlord $9,557.29. This course is consistent with the just, quick and cheap resolution of the proceedings (s 36(1) NCAT Act).

Rehearing of the landlord's set aside application

1. There is no dispute that the decision of 26 May 2025 was made in the absence of the tenant.
2. We are satisfied that the tenant's absence resulted in his case not being adequately put to the Tribunal because:

(1) He was not able to draw the Tribunal's attention to his documentary evidence referred to in the email to the Tribunal sent on 23 May 2025 and attempt to persuade the Tribunal that it should take account of such evidence;

(2) He was unable to provide oral evidence to the Tribunal in defence of the landlord's claims that he had damaged the lock and the floor safe, including the condition of those items at the commencement and at the end of the tenancy. This is particularly significant in the absence of ingoing and outgoing condition reports;

(3) He did not have the opportunity to provide oral submissions to contest the amount of rent outstanding, including when he provided vacant possession;

(4) He could not cross examine the landlord; and

(5) He could not provide submissions about his personal and economic circumstances, nor a proposed payment plan, in the event a money order was made against him.

1. The landlord refers to 'non-compliance and delay tactics' by the tenant.
2. We have taken into consideration that neither the Tribunal nor the landlord received any documents prior to the hearing on 26 May 2025.
3. The tenant insists that, in accordance with the Tribunal's orders of 2 February 2025, he did post a hard copy of his documents to the Tribunal and to the landlord around early April 2025. This is consistent with his email to the Tribunal of 23 May 2025 that "Evidence to support my case was posted 4 weeks ago".
4. If the tenant's documents had been received by the Tribunal, his case would have been considered.
5. Nevertheless, for the reasons we have explained above, the tenant's absence from the actual hearing would still have resulted in his case not being adequately put to the Tribunal, which is the test posed by r 9(1)(b).
6. The Tribunal's discretion to set aside the decision is thus enlivened.

1. When deciding whether to exercise our discretion to set aside the decision of 26 May 2025, our focus should be "whether there would be a real likelihood of injustice if the decision was allowed to stand: Ozzy at [80].
2. In deciding whether there would be a real likelihood of injustice, Ozzy states that relevant considerations will "generally" include:

(1) Why the party was absent; and

(2) Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.

1. The tenant says he was absent from the hearing because he was required to participate in mandatory training to commence a full-time position with a new employer. He says he was not able to arrange for anyone else (a lawyer or a lay person) to represent him.
2. Despite his request for an adjournment, it is not apparent from the Tribunal's orders whether it considered the tenant's adjournment request at the commencement of the hearing.
3. Work commitments are generally not a valid reason for failing to attend Tribunal proceedings.
4. The landlord highlights that the tenant was aware of the training requirement well before the hearing.
5. Another relevant consideration in the circumstances of this case is the uncontested fact that the tenant experienced significant trauma in early 2025 as a result of a home invasion at the residential premises.
6. Evidence from the tenant's treating psychologist dated 7 August 2025 says that this event exacerbated his pre-existing PTSD, depression and anxiety. This report also states that the tenant has and continues to experience significant difficulty in dealing with this Tribunal matter, in no small part due to an inability to differentiate between what is necessary and what is not.
7. Further, the psychologist states that the tenant has a decade long history of homelessness, unstable employment and unstable housing.
8. At the hearing before us, the tenant stated he lost his long-term business during COVID and was unemployed for 10 months. His home was "constantly under threat."
9. In this context, the tenant's absence from the hearing, while not acceptable, is somewhat understandable. In an unhealthy mental state, the tenant prioritised his new job and hopes of a stable income over the Tribunal hearing.
10. Finally, we are satisfied the tenant has an arguable defence in respect of the 3 claims of the landlord, such that a different decision could have been reached.

1. The landlord claims rent arrears to 15 October 2025, an amount of $5014.28.
2. Before us, the tenant conceded he owes all but $128.00 of the arrears, that is,. $4,886.28. He says that he vacated the premises on 14 October 2025 and attempted to leave the keys in the agent's lockbox but could not locate it.
3. It is not contested that the tenant returned the keys to the agency on 15 October 2025 at around 9.00 am.
4. The disputed $128.00 is the daily rate of rent for 15 October 2025.
5. The question of whether a tenant has given vacant possession of premises is a question of fact in each case (Phoenix v Guangyue Chen [2020] NSWCATAP 255).
6. Notwithstanding his delay in returning the keys, it is arguable that the tenant provided vacant possession on 14 October 2025, given the evidence before us that he had moved all his possessions from the premises on that date.

1. The landlord contends that at the end of the tenancy the code to the floor safe no longer worked and the safe requires replacement.
2. On giving vacant possession of the premises, the tenant must leave the residential premises in as nearly as possible the same condition, fair wear and tear excepted (s 51(3)(b) RT Act).
3. The landlord bears the onus of proving that the tenant breached this obligation.
4. The tenant argues that there is no evidence of the condition of the floor safe at the commencement of the tenancy, including an ingoing condition report confirming it was in working order.
5. Before us, the landlord could not identify any relevant evidence.
6. Without such evidence, the landlord may not be able to prove on the balance of probabilities that the tenant failed to return the safe in the same condition. The tenant therefore has an arguable defence.

1. The landlord claims that at the end of the tenancy the front door combination lock was broken: the fastening screw securing the combination pad is threaded and damaged beyond repair.
2. The landlord "asserts" the tenant was the last person to reprogram the lock and in doing so caused the damage.
3. For the following reasons we consider the tenant has an arguable defence, both in terms of the alleged breach and the amount of damages claimed.
4. Text messages show the tenant provided the agent with the access code at 10.13 am on 15 October 2025. The tenant denies he caused the damage and says the lock was working when he vacated. He highlights that there is no outgoing inspection report and no evidence from the locksmith who replaced the lock on 18 October 2025 that it was damaged at this time.
5. Further, the tenant argues the amount claimed is unreasonable and provides evidence of the lower cost of an equivalent model. He points out the landlord has not factored in depreciation.

Conclusion - Should the Tribunal's decision be set aside?

1. We recognise that setting aside the relevant order will cause prejudice to the landlord. He has invested time, effort and likely money attending the original hearing and taking steps to recover the judgment amount. He will also be deprived of the enforceable decision he had previously obtained.
2. We are satisfied, however, that there is a real likelihood of injustice if the original decision is allowed to stand to the extent that it includes an order that the tenant pay the landlord an amount in excess of $4,886.28 for rent arrears and the tenant is not given the opportunity to be heard or otherwise have his submissions considered in relation to the landlord's application for the amount of $128.00 in respect of arrears of rent, $3,738.00 in respect of the floorsafe and $805.01 in respect of the locksmith. .

(1) The appeal is allowed.

(2) The decision of the Tribunal dated 13 June 2025 to set aside Order 3 of the orders of 26 May 2025 is set aside.

(3) Upon rehearing, Order 3 of the orders made by the Tribunal on 26 May 2025 is set aside but only in so far as it includes the following amounts:

(a) An amount of $128.00 in respect of rent arrears.

(b) An amount of $3,738.00 in respect of the floor safe.

(c) An amount of $805.01 in respect of a Locksmith.

(4) Following upon Order 3, Matthew Shaw is ordered to pay Jordan Hodgson the amount of $4,886.28 within 14 days of the date of these orders.

(5) The proceedings are reinstated but only in so far as they concern the claims by the appellant for the amounts referred to in Order 3 (a), (b) and (c).

(6) Jordan Hodgson's application for the amounts referred to in Order 3 (a), (b) and (c) is remitted to the Tribunal to be determined in accordance with the law and with such further evidence as the Tribunal decides.

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.