J Emery Investments Pty Ltd v Hawken [2025] NSWCATCD 170;

(1) Documents lodged with the Tribunal electronically by the applicant on 27 June 2025 are admitted as Exhibit A2.

(2) Documents lodged with the Tribunal electronically by the respondent on 2 July 2025 are admitted as Exhibit R2.

1. On 15 July 2025, the Tribunal received a bundle of documents in hard copy from the applicant titled "Statement of Issues". While these documents were not filed strictly in accordance with the timetable, they were filed and served more than eight weeks prior to the hearing and there has been no objection from the respondent to them being admitted. These documents are admitted into evidence as Exhibit A3.
2. At hearing on 12 September 2025, both the applicant and Mr De Robillard sought to tender additional documents to be admitted into evidence. The applicant sought to hand up email correspondence from the respondent in relation to the service of documents. After the applicant gave oral submissions in response to the jurisdictional issues raised in the written evidence of the respondent, Mr De Robillard sought to intervene in proceedings and tender "written submissions in reply ... to what has just been said". I noted that the Tribunal made directions as to the filing of evidence and that it would be procedurally unfair for me to accept new documents and submissions into evidence at hearing that did not comply with the directions of the Tribunal. I refused to accept into evidence these additional documents.
3. On 12 September 2025, after the hearing concluded, the respondent lodged a document titled "Submissions on Jurisdiction and Authority" with the Tribunal, which I understand to be the same document Mr De Robillard sought to tender at hearing and which I refused to accept. My decision to not admit this document into evidence after the hearing is dealt with below in my consideration of the application to re-open the hearing.
4. On 2 October 2025 the respondent filed electronically with the Tribunal additional documents in relation to an application that I recuse myself from "further involvement in these proceedings on the ground of apprehended bias". My decision to not recuse myself is also dealt with below.

1. On 12 September 2025 after the hearing concluded, the respondent lodged a further document with the Tribunal titled "Submissions on Jurisdiction and Authority". This was followed on 16 September 2025 with a formal application from the respondent to re-open proceedings. The application sought that the respondent's written submissions of 12 September 2025 be admitted into evidence and that the Tribunal make further directions and determine the jurisdictional issues before the substantive claim was heard. The respondent also sought directions that the applicant file written submissions to address alleged inconsistencies in their evidence.
2. On 22 September 2025 the applicant filed submissions, and then further submissions on 30 September 2025 in compliance with orders made by the Tribunal on 24 September 2025 seeking a response from the applicant.
3. I have taken into account these documents only in relation to the application to re-open the proceedings.

1. The respondent's application to re-open the proceedings is based on claims that he was medically unfit to attend the hearing, that his medical evidence and written submissions in relation to jurisdiction were not received by the Tribunal, that the applicant did not comply with the directions of the Tribunal made on 13 June 2025, that the Tribunal should not confine itself to particular documents filed in the proceedings, as well as allegations about bias (which I consider are dealt with below in the application for recusal).
2. The applicant opposes re-opening of the proceedings and the admission into evidence of the respondent's submissions lodged after hearing. The applicant submits that there were clear directions made on 13 June 2025 for the filing of evidence, that the respondent in fact filed and served a bundle of evidence in compliance with this timetable on 2 July 2025 which included submissions on the jurisdictional issues and was admitted into evidence, and submits any additional arguments could, with reasonable diligence, have been filed within time.

1. An application to re-open proceedings and adduce further evidence is discretionary. The guiding question is whether the interests of justice are better served by allowing or refusing the application: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478D. Relevant considerations include why the evidence was not led in the first place, likely prejudice to the party opposing the application and the public interest in the finality of litigation. Inadvertent oversight may weigh in favour of re-opening while material withheld for forensic or tactical reasons generally weighs against it: Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 266-267.
2. Where re-opening is sought before a decision is made the threshold is lower than after decision, but the central question remains whether justice is best served: Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128 at 138-139. Key considerations are the relevance and probative value of the proposed material and whether it is probable to the required degree that the additional evidence will affect the result: Telstra Corporation Ltd v ACCC [2008] FCA 1436; (2008) 171 FCR 174 at 208-209.
3. Relevant discretionary factors include: (a) the nature of the proceeding; (b) whether the need for the further evidence ought reasonably to have been foreseen; (c) fairness to the other side in knowing the evidence to be met; (d) the extent to which the party has already led evidence on the issue; (e) the importance of the issue; (f) the relevance and probative value of the further evidence and whether adducing it would involve undue waste of time; (g) prejudice from delay and consequential costs; (h) the public interest in the timely conclusion of litigation; and (i) the explanation for not calling the evidence earlier: Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at 18.

1. I find that the respondent had a full and fair opportunity to advance any jurisdiction objections within the directions timetable. He filed and served documents on 16 June 2025 and 2 July 2025, including submissions on jurisdiction. The respondent did not attend the hearing. He did not seek an adjournment. He did not seek any extension of time to file further material.
2. The material the respondent now seeks to have admitted consists of submissions only. No affidavit or other admissible evidence is included. The submissions repeat or expand points already made and add further jurisdiction arguments that could have been made earlier. I am not satisfied that the omission of these submissions was an inadvertent oversight by the respondent. Given the late attempt to file documents and re-open the proceedings, I consider that it is more likely that the application is made for tactical reasons in order to delay the proceedings.
3. The respondent also asks that the Tribunal determine jurisdiction before the substantive claim and that the applicant file further submissions on alleged inconsistencies. Those issues do not require re-opening. The alleged inconsistencies are not new evidence and could have been raised in submissions within the timetable or with an application for an extension of time to comply.
4. Even if admitted, I find that the additional submissions are not shown to be likely to affect the outcome. They are submissions rather than evidence. They do not identify any genuinely fresh point that could not have been advanced earlier. The alleged inconsistencies are described at a high level and do not change the evidence before the Tribunal. Jurisdiction can be determined on the material already admitted and the parties' timely submissions. I am not satisfied that receiving the late submissions would alter any finding or the final result.
5. One explanation provided by the respondent for the delayed submissions is that he was medically unfit on the hearing day. However, he did not use the Tribunal's procedures to seek an adjournment or an extension of time or seek to file these submissions prior to the hearing.
6. The respondent also claims that he was unable to respond to the applicant's documents in time because the applicant did not file their documents in accordance with the ordered timetable. I accept the applicant's evidence that its documents were properly served within the timetable by email to the address the respondent had nominated for service. At the respondent's insistence a hard-copy folder was provided on or around 25 July 2025, but that did not invalidate the earlier electronic service or alter the respondent's obligation to comply with directions.
7. Further, even if I were to find that service was not properly affected, the respondent had approximately seven weeks from receipt of the hard copy until the hearing to raise any concern and to seek an extension of time if required. He did not do so.
8. I find that these explanations for the delay in seeking to admit further submissions are unsatisfactory.
9. Re-opening to admit the additional submissions or to make the further directions sought would undermine finality and orderly case management. It would require the applicant to meet a shifting case after the timetable closed. It would cause further delay and cost. Any detriment to the respondent from refusal to re-open is reduced by the availability of an appeal process.
10. Having regard to the interests of justice, the absence of a satisfactory explanation, the limited value of the proposed material, the prejudice and delay that would result and the public interest in timely conclusion, leave to re-open is dismissed and the additional submissions are not admitted.
11. The proceedings, including any threshold jurisdiction questions, will be determined on the admitted evidence and the parties' timely submissions.

1. On 2 October 2025 the respondent made an application that I recuse myself for apprehended bias. The application was brought after the hearing had concluded and while the decision was reserved, so the applicant has not had an opportunity to be heard
2. The governing test is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions to be decided: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 11 affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. Findings of apprehended bias are not reached lightly: Polsen v Harrison [2021] NSWCA 23 at 46.
3. I find that the respondent has not established a basis for this application. The application refers to routine hearing management decisions taken to ensure procedural fairness and efficiency, consistent with the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to facilitate the just, quick and cheap resolution of the real issues. Such steps indicate nothing about my views on the merits or the claim, and no logical link is identified between them and any risk that I would decide the case other than on its legal and factual merits: Ebner at 8.
4. The recusal application is dismissed.
5. In any event, any complaint about apprehended bias or excessive intervention may be pursued on appeal even if it was not raised at the hearing: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at 34, 255, 298.

1. Based on the evidence before me in the substantive claim, I make the following findings of fact. In making these findings of fact, I have considered all the documents admitted into evidence as identified above.

1. On or around 4 August 2023, Mr Emery and Mr Hawken first entered into discussions for the purchase of the property at [address], Maroubra. It is not in dispute that as part of these discussions there were various financing options canvassed, including Mr Hawken continuing to reside in the property.
2. On 10 August 2023, the applicant's accountants, DFK Nugents, circulated an internal email outlining a proposed self-managed superannuation fund (SMSF) structure for the purchase of the property. The email recorded that the vendor might sell for $1.6 million on condition that he could live there rent-free for five years, described as "rent substituted for decreased purchase price." (R1 Annex H).
3. On 15 September 2023, J & J Emery Superannuation Pty Ltd (ACN 670 732 055) and Mr Hawken executed a contract for sale (Contract) which required vacant possession and provided for completion 150 days after exchange (A1 Tab C)
4. Also on 15 September 2023, J & J Emery Superannuation Pty Ltd and Mr Hawken executed a deed of lease (Deed) prepared by the respondent's solicitors, Goulden Legal. It provided for a five-year lease term commencing on completion of the Contract, rent of $50,000.00 per annum payable weekly, monthly or quarterly in advance, and stated that the lease was subject to the Residential Tenancies Act 2010 (NSW) and that the tenant might lodge a caveat in relation to a lease interest.
5. On 15 September 2023 at 3:02 pm, Mr Emery also emailed the respondent stating that if the purchase proceeded it would be "on the basis of the written contract alone, without any side agreements or additional payments." (A1 Tab B). It is not clear from the evidence before me whether this email was issued prior to execution of the Contract and/or the Deed.
6. On 18 January 2024, completion of the contract occurred, and the lease commenced.

1. Between 16 October 2023 and 8 July 2024, Mr Emery made personal payments described as "gifts" to or for the respondent totalling $60,000.00 as follows (A3: Mr Emery statement 11 Jul 2025):

(1) On or around 16 October 2023, $35,000.00 was paid to Jennifer Byrne, a friend of the respondent ($20,000.00 by EFT and $15,000.00 in cash).

(2) On or around 9 January 2024, $2,000.00 was paid to the respondent by EFT marked as a "gift" on the bank statement.

(3) On or around 27 February 2024, $13,000.00 in cash was given to the respondent.

(4) On or around 8 July 2024, $10,000.00 in cash was given to the respondent.

1. During 2024 the respondent made rent payments totalling $50,000.00 consistent with the payments required for the first year under the Deed (18 January 2024 to 17 January 2025), as follows:

(1) 18 January 2024 - $15,000.00

(2) 2 May 2024 - $10,000.00

(3) 11 July 2024 - $1,000.00

(4) 25 July 2024 - $1,000.00

(5) 1 August 2024 - $1,000.00

(6) 8 August 2024 - $1,000.00

(7) 15 August 2024 - $1,000.00

(8) 22 August 2024 - $20,000.00

1. There is no evidence before me in relation to these payments save for the statements of Mr Emery (including a rent payment ledger) and Mr Hawken.

1. Mr Hawken maintains that the written lease and the recorded rent payments do not reflect the parties' true arrangement.
2. He says that Mr Emery told him it was necessary to include rent of $50,000.00 per year in the Deed to satisfy compliance and audit requirements of Mr Emery's self-managed superannuation fund, and that the real agreement was that Mr Hawken could remain in the property rent-free for five years after the sale.
3. Mr Hawken characterises the payments he received from Mr Emery between October 2023 and July 2024 as part of a "round-robin" of money intended to create the appearance of rent being paid for superannuation and taxation purposes, rather than genuine rent under a residential tenancy. Mr Hawken also says that Mr Emery instructed him not to record the true nature of the arrangement in writing or by text message.
4. In substance, Mr Hawken's position is that the purported lease was a sham designed to enable Mr Emery's superannuation fund to show rental income that was never in fact owed or paid as rent.

1. Mr Emery gives a different account of the payments and the nature of the arrangement. He says that the parties reached a straightforward commercial agreement, being that the respondent sold the property for $1.65 million and leased it back for five years at a rent of $50,000.00 per year, as recorded in the written Deed of Lease prepared by the respondent's own solicitors.
2. Mr Emery denies that there was any side deal or understanding that the respondent could occupy the property rent-free or that the rent figure was included only for superannuation or taxation purposes. He says that the payments he made to or for the respondent between October 2023 and July 2024 totalling $60,000.00 were personal gifts made out of goodwill because he "felt sorry for" the respondent and his financial situation, and the payments were unconnected with the lease.
3. In his evidence Mr Emery rejected suggestions that he asked the respondent to conceal any arrangement or that the lease or rent records were contrived for audit reasons. His position is that the lease represents the genuine and complete agreement between the parties and that the respondent's later assertions of a "sham" arrangement are unfounded.

1. I acknowledge that there are aspects of the parties' dealings that appear irregular and that some of the evidence raises legitimate suspicion about the nature of the agreement.
2. Having considered the competing accounts, I accept that Mr Hawken genuinely believed that there was an unwritten arrangement that allowed him to remain in the property for 5 years without paying rent and that the payments made by Mr Emery were intended at least in part to compensate him for that understanding.
3. I also accept that discussions occurred between the parties that were not recorded in writing and that the precise terms of any such conversations cannot now be verified.
4. However, doing the best I can on the evidence before me, I place greater weight on the contemporaneous documents. The Deed of Lease was prepared by Mr Hawken's own solicitors, signed by both parties and provides for rent of $50,000.00 per year. I find that the payments recorded in Mr Emery's payment ledger were in fact made. On balance, I find that those payments represented rent within the meaning of the Deed of Lease, regardless of their source or any informal understanding Mr Hawken believed existed.

1. On 9 May 2024, title to the premises was transferred from J & J Emery Superannuation Pty Ltd to J Emery Investments Pty Ltd (the applicant) (A1 Title Search; A3 Statement of Issues).
2. On 31 January 2025, the respondent emailed Mr Emery noting that the superannuation fund was no longer the owner and requesting that future communications occur through solicitors (R1 Annex B).
3. On 2 February 2025, the respondent emailed Mr Emery enclosing a title search confirming the May 2024 transfer (Ex R1 Annex C). I accept that the property was properly transferred from J & J Emery Superannuation Pty Ltd to J Emery Investments Pty Ltd.
4. On 3 February 2025, the respondent lodged a caveat claiming a lease interest under the Deed of Lease dated 15 September 2023 (Land Registry Doc ID AU800951).
5. On 10 February 2025, the applicant's accountants emailed the respondent advising that the last rent payment had been received in August 2024, covering rent to the week commencing 9 January 2025 and requesting payment of arrears.
6. Between 11 and 13 February 2025, emails were exchanged in which the respondent disputed the agreed rent and arrears, and the accountants confirmed the property was held on bare trust for the superannuation fund.
7. On 19 February 2025, the applicant's solicitors wrote to the respondent confirming that rent had been paid up to 17 January 2025 and demanding payment of five weeks' arrears.
8. On 17 March 2025, the applicant's solicitors issued a further letter stating that arrears stood at $7 692.32 as at 15 March 2025.
9. Between 21 and 31 March 2025, emails from the respondent confirmed the respondent's email address should be used for service of documents.
10. Between 13 and 19 April 2025, the respondent emailed the applicant raising settlement proposals and alleging that the property transactions were a "sham".
11. On 15 April 2025, the applicant issued a termination notice alleging twelve weeks' arrears and requiring payment of $11,538.46 by 2 May 2025 failing which the respondent was to vacate on 3 May 2025 (A1: Termination Notice.)
12. On 14 May 2025, the applicant lodged an application in the Tribunal seeking termination of the tenancy and payment of arrears.
13. On 15 May 2025, the respondent acknowledged receipt of the application and confirmed his email address for service of documents.
14. Having made these findings, I now turn to consider the key issues that arise from the evidence.

Does the Tribunal have jurisdiction to hear and determine the matter?

1. The respondent raised a number of jurisdictional objections in his written submissions and correspondence. The applicant addressed these matters in its written materials and through oral submissions at hearing.
2. The Tribunal has jurisdiction to determine whether or not it has jurisdiction to deal with an application. In doing so, the Tribunal makes an ancillary decision within the meaning of section 4(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

1. Section 13 of the RT Act relevantly provides as follows:

13 Agreements that are residential tenancy agreements

(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

1. The respondent contends that the Tribunal lacks jurisdiction because the lease was not in the prescribed form and because it was a "sham" designed for taxation or superannuation purposes.
2. On the evidence, there is a written agreement in the form of the Deed of Lease executed by both parties on 15 September 2023. The Deed grants to the respondent a right of occupation of the property at [address], Maroubra, being residential premises, for a term of five years commencing on completion of the contract for sale. The Deed specifies that the rent is $50,000.00 per year, payable weekly, monthly or quarterly in advance. As I have found above, the respondent made payments consistent with that obligation and I have found that those payments were payments of rent under the Deed.
3. There is no dispute that the premises are residential premises and that the right of occupation was for the purpose of use as a residence.
4. I am satisfied that the criteria in section 13(1) are met and that there is an agreement, a grant of a right of occupation to a residential premises and that this agreement was for value.
5. Section 13(2) provides that an agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. The section does not require a prescribed form. The Deed of Lease is an express, written agreement that on its face meets the requirements of section 13(2).
6. Accordingly, I am satisfied that the Deed meets the requirements of section 13 of the RT Act.

Exclusion Under Section 8(1)(f) - Lease Arising from Sale of Land

1. Section 8 of the RT Act relevantly provides for the following exclusion:

(1) This Act does not apply to the following agreements -

...

(f) an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement,

1. The respondent did not raise any submission that the lease is excluded from the operation of the Act under section 8(1)(f). Nevertheless, the applicant raised and addressed the potential operation of section 8(1)(f) at hearing and I will consider it for completeness.
2. The test for whether section 8(1)(f) applies was considered by Bathurst CJ in Hudson v ARAP 1 (NSW) Pty Ltd [2015] NSWCA 126. His Honour explained (at 30-34) that the exclusion applies only where, on its proper construction, the contract for sale itself confers a right of occupation of the residential premises. It does not apply merely because the parties enter into a separate lease or tenancy agreement in connection with or contemporaneously with the sale. Even if the contract of sale contemplates such an arrangement, the exclusion is not engaged unless the right of occupation arises from the contract itself.
3. On the evidence before me, the contract required vacant possession and made no reference to any continuing right of occupation. The right of occupation arose only under the separate Deed executed by the parties. The Deed did not form part of the Contract.
4. Applying the reasoning in Hudson v ARAP 1, I find that the right to occupy did not arise from the Contract but from the separate Deed. Accordingly, the exclusion provided by section 8(1)(f) of the RT Act does not apply.

Standing of the Applicant and Transfer of Landlord's Title

1. The respondent submits that the applicant lacks standing because it is said to be a bare trustee holding no beneficial interest in the property, and because the lease was entered into by a predecessor in title rather than the applicant. He relies on Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1 in support.
2. The respondent points to the fact that the Deed of Lease named J & J Emery Superannuation Pty Ltd as landlord, whereas the current registered proprietor is J Emery Investments Pty Ltd, and asserts that the applicant holds title "without consideration" and only as a bare trustee for the superannuation fund. On that basis, he contends the applicant has no capacity to bring these proceedings or to enforce the lease.
3. I do not accept that submission. The applicant is a registered company and the current registered proprietor of the property. Under section 124 of the Corporations Act 2001 (Cth), a company has the legal capacity and powers of an individual, including the power to commence and conduct proceedings. Nothing in Naaman v Jaken supports the proposition that a bare trustee lacks legal capacity to act in dealings with third parties. To the contrary, the High Court confirmed that a trustee, even one described as a bare trustee, remains the legal owner of the trust property and has its own right to be indemnified from that property for expenses properly incurred. Because of that legal and equitable interest, a trustee can bring or defend proceedings concerning the property in its own name.
4. The evidence shows that the property was transferred to the applicant on 9 May 2024. The respondent has since remained in occupation and, at least for the first year under the Deed, has made payments of rent to or for the applicant.
5. Under sections 117 and 118 of the Conveyancing Act 1919 (NSW), when the landlord's reversionary interest in leased premises is transferred, the rights and obligations under the lease pass automatically to the transferee. The new owner acquires the benefit of the tenant's covenants, including the obligation to pay rent, and assumes the corresponding duties of the landlord. Accordingly, following the transfer of title on 9 May 2024, the applicant stood in the position of landlord for the purposes of the tenancy.
6. On this evidence, I am satisfied that the applicant has legal standing to bring these proceedings. It is the current registered proprietor, its rights and obligations under the lease have vested in it by operation of law and its status as a trustee does not prevent it from enforcing those rights before the Tribunal.

1. I am satisfied that there is a residential tenancy agreement within the meaning of section 13 of the RT Act, that no exclusion in section 8 applies and that the applicant, as the current registered proprietor, has standing to bring these proceedings.
2. Accordingly, I find that the Tribunal has jurisdiction to determine the application.

Was the termination notice valid and properly served?

1. As I have found above, the termination notice is dated 15 April 2025 with 3 May 2025 identified as the date for vacant possession. Proceedings were filed on 14 May 2025. The termination notice provided not less than 14 days' notice and the application to the Tribunal was made within the prescribed 30 day period.
2. The ground relied upon is non‑payment of rent. Based on the evidence before me in the form of a schedule of payments made by the respondent, I am satisfied that when the termination notice was issued, the rent had been unpaid for not less than 14 days.
3. The notice was sent by email to two addresses. The evidence satisfies me that at least one of those addresses was specified by the respondent as the email address for the electronic service of notices and documents relating to the tenancy. I am satisfied that the termination notice was properly served on the respondent.
4. I am satisfied that the termination notice is valid.

Are rent arrears established and, if so, in what sum?

1. The Deed of Lease provides for rent of $50,000.00 per annum payable in advance. The tenant has the option to pay weekly, monthly or quarterly. The ledger of payments in evidence and correspondence from the applicant's solicitors show that the last payment of rent was made on 22 August 2024 and that rent was paid up to 17 January 2025.
2. The respondent has not provided any evidence of payments made after 17 January 2025 nor has he disputed the calculation of arrears except to say the agreement was that he would live at the premises rent free.
3. I am satisfied that the respondent has breached the residential tenancy agreement by failing to pay rent. I am satisfied that the rent arrears owed are from 18 January 2025 to 12 September 2025 inclusive, being 238 days at the daily rate of $137.36 in the total amount of $32,691.68.
4. At hearing, the applicant acknowledged the monetary limit of the Tribunal of $15,000.00 and consented to be bound by this limit in relation to any money order made.

Has the respondent frequently failed to pay rent?

1. The applicant sought a finding under section 89(5) of the RT Act that the respondent has frequently failed to pay rent on time. I decline to make that finding.
2. The evidence indicates that the dispute arose from the respondent's mistaken belief that he was not required to pay rent under what he understood to be a rent-free arrangement. While I have found that belief to be inconsistent with the contemporaneous documents and the terms of the Deed, I accept that it may have been genuinely held.
3. In these circumstances, I do not consider it appropriate to make an order under section 89(5).

1. Section 87 of the RT Act (as it stood at the time the termination notice was issued in this matter) provides:

(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.

1. I have found above that the respondent has breached the residential tenancy agreement by failing to pay rent, and that the termination notice was validly given.
2. Having considered all of the circumstances including the duration and extent of arrears, the absence of any evidence of hardship beyond continued occupation and the applicant's financial loss since January 2025, I am satisfied that, on balance, a termination order is justified and appropriate.

1. Under section 114 of the RT Act, the Tribunal may suspend the operation of a termination order if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and the tenant by the suspension.
2. The respondent has occupied the premises for a substantial period and immediate termination would cause some disruption. However, the applicant has been without rental income for approximately 9 months. Balancing these considerations, I am satisfied that it is desirable to suspend the operation of the termination and possession order until 6 November 2025 with a daily occupation fee payable until vacant possession is given.

(1) The respondent's application to re‑open the hearing is dismissed.

(2) The respondent's application that the Member recuse is dismissed.

(3) The Tribunal makes an order under the Residential Tenancies Act 2010 terminating the residential tenancy agreement immediately, as the tenant has breached the agreement by failing to pay rent or charges.

(4) The Tribunal orders the residential tenancy agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

(5) The Tribunal makes an order under section 114 of the Residential Tenancies Act 2010 that the order for possession is suspended until 6 November 2025.

(6) The tenant is to pay the landlord a daily occupation fee at the rate of $137.36 per day from the day after the date of termination until the date vacant possession is given.

(7) The landlord may request the relisting of this application to determine the occupation fee owing, within 60 days from the date of possession.

(8) The application for a finding under section 89(5) of the Residential Tenancies Act 2010 is dismissed.

(9) The Tribunal orders that the respondent, Daniel Hawken, is to pay the applicant, J Emery Investments Pty Ltd, the sum of $15,000.00 on or before 6 November 2025.

Details of the money order are for rent arrears from 18 January 2025 to 12 September 2025 in the amount of $32,691.68 limited to the Tribunal's jurisdiction of $15,000.00.

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.