Jiang v Earlcore Pty Ltd

(1) the tenant had entered into a residential tenancy agreement with the landlord on 22 June 2019 (RTA);

(2) the term of the RTA was 30 weeks, after which the RTA continued as a periodic agreement: Residential Tenancies Act 2010 (NSW) (RT Act), s 18; Note 2 to the RTA;

(3) the fortnightly rent was $760.00;

(4) on Sunday 29 September 2024, the landlord's agent notified the tenant that the landlord was increasing the fortnightly rent to $1,100.00;

(5) on Tuesday 15 October 2024, the appellant gave the landlord's agent written notice that "I have to move to social housing. If I can't move tomorrow, I will move on Thursday";

(6) the tenant vacated the premises on 19 October 2024.

1. The tenant filed a Notice of Appeal on 19 March 2025, which is within the time provided by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The grounds of appeal are stated as:

The decision is against Division 3 section 100 of the Residential Tenancies Act 2010".

I am hereby asking the NCAT Appeal Panel to correct an obvious error on a decision and the reason for the decision that ignored the fact that I was offered and accepted a social housing.

Return the rental bonds to me, cause the decision was not fair and was against the weight of the evidence.

1. The tenant then states that the Decision was not fair and equitable. After setting out s 97 of the RT Act, she states:

21 days after the day on which the notice is given is not suits me because I was offered social housing.

The most notable reason is that I am in job seeker payment, and the rental increased from $720 to $1100 per fortnight.

The Decision is not fair and equitable, because the judger ignored the fact that I was offered and accepted a social housing, and only punished me the fact I do not know I have to apply for the hardship to court in advance. So the reason for the decision is an obvious error.

I also emailed and go to the agent office on the second rental increase in 2023 which is increased from $800 to $1100 per fortnight.

I am in a homeless position, that's I was offered and accepted social housing.

Please consider me on the offer of social housing and consistent with the Residential Tenancies Act, section 100, as well as the explanation of fair trade!!!

1. The tenant then states that the Decision was against the weight of the evidence be. She states that:

I showed the social housing contract to the judger in the hearing.

I written to the tribunal that I was in both financial and healthy hardship and am in social housing.

The Tribunal should have given all weight to the agent.

Because it is totally ignored the fact that I was in social housing which I have the rights to claim.

Because the Bond money transferred to the agent, and there is error on the ending date.

If the notice is given on 15/10/2024, 3 weeks ending date is 4th/11 instead of 5th/11. Total of days should be 17 days not 19 days.

But that's not the case for I am accepted In social housing.

1. Finally, the tenant says that the appeal should be allowed on the basis that there is now evidence available that was not reasonably available at the time of the hearing. The tenant states:

What evidence/documents do you now seek to produce to the Tribunal?

1. Since I am in periodic agreement, I wish to challenge that if it is legal that the rental is increased from $720 to $1100 per fortnight, a 54% increase.

2. A periodic agreement is a normal fixed term agreement.

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

I wasn't thinking this issue, and just explained from some officer, in particular, social housing and fair trade officer!

1. The matters raised in the Notice of Appeal are amplified in the tenant's written submissions. In summary the tenant submitted that:

...

1. I have been offered and accepted accommodation in social housing premises, 2) a periodic term agreement is a nominal fixed term agreement, and 3) being offered to a social housing because I was in a terrible situation.

I did nothing wrong; it is really unfair to put all the hardest punishments on the weakest person. After living at the premises for more than 5 years, I suffered from the rusted hot water allergy in the last more than 3 years of living with a face swollen, burning and red. And with 3 times increased rental price for more than 50%, (from $720 to $1100 fortnight!) In an emergency, the social housing officer finally offered me social housing. If it does not dramatically increase the rental price and if it was not a rusted hot water allergy, I should be able to pay 21 days' notice.

...

this agent is the greediest and ruthless.

...

Application under Residential Tenancies Act 2010 Division 3 sector 100: Early termination without compensation to landlord.

A tenant may give a termination notice for a fixed term agreement on a) that the tenant has been offered, and accepted, accommodation in social housing premises. 1)1 have been offered and accepted accommodation in social housing premises, and 2) I had a fixed term agreement and a periodic term agreement is a normal fixed term agreement (explained by the social housing officer).

...

1 After this agent took over the premises that I rented, during the time of three years he increased the rental price by more than 53% I paid before, this event really caused my financial hardship.

2 I suffered from an allergy from rusted hot water in the premises for more than 3 years, and the agent knew about the rusted hot water system on the premises which they just kept silent.

3 They also cheated or mistaken the calculation of the 21 days' notice if it applied for me. I was given the notice on 15th if 21 days apply to me the end date is 4th Nov. rather than 5th They deliberately count 2 days more to charge me.

4 If all those things did not happen, I should be able to pay for 21 days' notice. And

5 According to the fairtrade officer, I should apply for Residential Tenancies Act 2010, Division 3 sector 100 clause, because 1) I was offered and accepted accommodation in social housing premises, and 2) a periodic term agreement is the normal fixed term agreement.

...

I gave oral evidence that I was consulting the fair trade officer, and explained what the office said and helped to release the bond, that under the social housing there is no 21 days notice and the judge mediates for 1 week notice, I agreed but the agent did not accept. At the hearing, it was totally ignored the fact that I was accepted and moved to social housing. It only punished me the fact that I did not know I should apply to the court for the financial and health hardship.

1. The tenant provided transcripts of a telephone conversation she had with a NSW Fair Trading officer, "Wendy", on 17 October 2024; the transcript of the Tribunal hearing on 17 March 2025, the transcript of a further telephone conversation with another NSW Fair Trading officer on 17 March 2025 following the Tribunal hearing together with the relevant sound recordings.

1. Relevantly, the tenant relies on the following passage:

FT: ... Are you on a fixed term agreement for the current property?

Tenant: Yes, I ceased to give the notice, ceased to rental in the current property, moved to the social housing.

FT: How much notice have you given the real estate agent that you are going to leave the property?

Tenant How much? How much days or how much? Okay. I already noticed them.

FT: How many days did you tell them before you move out?

Tenant I do;'t know. I will move out this Saturday.

FT: And when did you tell them?

Tenant: 15th of June, this Tuesday.

FT: So you have given them from Tuesday to Saturday that you are going to vacate the property?

Tenant Yes

FT: Okay. And that is because you have been awarded social housing?

Tenant: Yeah.

FT: Okay. You can terminate your lease without any compensation to the real estate agent on your bond because you have been accepted in social housing?

Tenant: Yes.

FT: Okay. So you don't have to give them the regulated 14 or 21 days?

Tenant: Yes.

FT: You can just tell them that you are moving (6:39) into social housing and you let them know it is social housing?

Tenant: Yeah. I let them know. They ask me to sign the form and then they say it's 21 days. Or they can reduce it to 14 days.

FT: You don't need that type of notice?

Tenant: Pardon?

FT: You do not have to give them that much notice? Yes.

Tenant: Yes. This is also the social housing say that. And then they are just holding that. So I am so stressful because I really, really need this money back.

(emphasis added)

1. We set out the relevant parts of the Tribunal oral reasons for decision (with paragraph breaks added for ease of understanding):

... I [am] satisfied that there was a residential tenancy agreement between the parties in respect of residential promises in Macquarie Park NSW, there was a residential tenancy agreement entered into by Ms Jiang with the former's owner of the property on the 21 Jun 2019 for a fixed term of 12 months or more specifically 52 weeks. That's tenancy has thereafter continued on a periodic basis with no further written tenancy agreement entered into.

I am also satisfied that in about 2022 notice of sale at the premises was given in respect of the now applicant landlord becoming the registered proprietor of the premises and the tenancy has continued thereafter. In those circumstances the tribunal has jurisdiction to hear determine the subject to section 175 of the residential tenancy act.

There is no dispute that on the 15 Oct 2024 Ms Jinag gave a notice of to terminate the tenancy agreement sign by her and noting terminating a periodic tenancy, the notice itself specified the termination date need to be not earlier than 21 days after the notice is given.

Section 97 of residential tenancy agreement act, however, the terminating date given on the notice was the 19 Oct 2024 being only 4 days after the date of the termination the notice.

It is in those circumstance that despite the fact that Ms Jiang appeared to have had a very good payment history that there is a claim for a rear of in sum of $1357.14 being for 19 days from the 18 Oct to the 5 Nov, which would be the expiry of the 21 days period after the notice was given pursuant of section 97.

Mr Jackson rely upon section 97 the notice the residential tenancy agreement and the rent ledger to establish the landlord's claim,

Ms Jiang both in her documentary evidence in her oral evidence relied on at least two essence,

the first was that at the page 14 or 15 of residential tenancy agreement as well as setting out that ending a periodic agreement required notice 21 days, at point 5 on that page titled other grounds for ending agreement, the residential tenancy agreement she noticed that either the residential tenancy authorises either the landlord or the tenant to ending the agreement on the other grounds including but not limiting to hardship. As I noted to Ms Jiang during the course on her evidence and submissions, that hardship is not at large. As section 5 on that page no, it is a reference to the authorisation under the residential tendency act, that authorization is pursuant to section 104 of the act, which provides that the tribunal may on application by tenant make a termination order through a fixed term agreement if it is satisfied the tenant would in the specified circumstance of the case suffer undue hardship if the residential tenancy were not terminated. There is also then further provisions about providing compensation to the landlord's if appropriate. No such application was made to the tribunal and perhaps even more fundamentally as at 2024 there was no fixed term agreement, the fixed term agreement was entered into expired in or about mid-2020, and since that date, there has been only a periodic agreement between the parties, in those circumstance the matter of hardship upon which Ms Jiang rely and I accept her evidence that she was finding hardship in paying the rent which was had increased previous year and perhaps was going to increase towards the end of 2024. However that does not on the basis of the agreement nor the act provide basis not to give 21 days notice.

The second basis was that Ms Jiang was taking out a social housing tenancy, and she has been provided with advice that she did not need to provide the 21 days notice otherwise required by section 97. That is not a accurate description of the rights written by the residential tenancy act. Where a tenant has accepted an offer of social housing there is provision for a tenant given 14 days written notice to end a fixed term agreement earlier without penalty. There is no such basis for which would entitle a tenant under a periodic agreement to provide no more than four days of notice.

Having regard to all those matters I'm not satisfied that the matter of hardship, nor the matter of the fact that Ms Jiang were taking up a residential a social housing tendency allow her to escape the operation of the term of section of 97 of the Act. I have not ignored the other matters that are set out on the second page of Ms Jiang's written document, however, they none of those matters were addressed to me in oral submissions but in any event I find that they do not provide a separate or independent basis in order to escape the operation of the section of 97. For those reasons,

I will make the following orders: 1. The rental bond board is directed to pay the applicant Earlore Pty limited the sum of $1357.14 from rental bond number S497172-0, 2. any balance of the bond is to be paid to the respondent Ms Jiang.

(typographical and other errors as in original)

1. The landlord did not file a Reply to Appeal, despite orders to do so.
2. The landlord did file a bundle of materials on 22 September 2025, which was some three months after it was required to do so. No satisfactory explanation was given for the delay.
3. In the circumstances, we refuse leave to the respondent to rely on those documents.

1. Section 80 of the Civil and Administrative Tribunal Act 2015 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. What is a question of law has been considered by the Appeal Panel, notably in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 and more recently in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. In circumstances where the appellant is not legally represented, it is appropriate for the Appeal Panel to approach the issue by looking at the grounds of appeal generally, and to determine for itself whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent (Prendergast at [12]. See the various authorities on this issue referred to in Unique at [28].
2. We see no question of law being raised by the tenant.
3. Therefore the tenant requires a grant of leave.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

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

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

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

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. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. As the Appeal Panel stated in Unique:

41 Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.

42 The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. (Citations omitted)

43 Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice." (Citation omitted)

(1) Hungry Jack's was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9].

The Decision was not fair and equitable; The Decision was against the weight of evidence

1. These grounds may be considered together, as they raise the same points, namely that the Tribunal misapplied s 100 of the RT Act and overlooked the fact that she had accepted an offer of social housing accommodation.
2. The tenant amplified her oral submissions at the appeal hearing. She emphasised that she had told the landlord's agent about entering into an agreement with a social housing provider as soon as possible, that under s 100 of the RT Act the landlord was not entitled to compensation, and that the Tribunal had ignored s 100.
3. When questioned by the Appeal Panel, the tenant acknowledged that the tenancy agreement was a periodic agreement, not a fixed term agreement.
4. In response, Mr Jackson submitted that the landlord had not asked for compensation, and that the landlord had only ever asked for what it was legally and fairly entitled to, namely rent for failure to give the required period of notice; see s 97 of the RT Act which provides:

97 Termination of periodic agreement by tenant

(1) A tenant may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 21 days after the day on which the notice is given.

1. The tenant's argument proceeds on a misunderstanding. Section 100 applies where a tenant is giving termination of a fixed term agreement. That is not the case here, where the tenant was giving notice of termination of a periodic agreement.
2. Section 18 of the RT Act provides that:

18 Fixed term agreements to continue as periodic agreements after end of fixed term

A fixed term agreement that continues after the day on which the fixed term ends continues to apply -

(a) as if the term of the agreement were replaced by a periodic agreement, and

(b) on the same terms as immediately before the end of the fixed term.

Note.

A landlord and tenant may also enter a further agreement for a further fixed term tenancy.

1. As noted above, the RTA provided for a tenancy of 30 weeks, commencing on 22 June 2019. Therefore, RTA concluded on 18 January 2020, with the periodic agreement commencing (on the same terms of the fixed term agreement (that is, the RTA)), the following day.
2. Section 100 provides:

100 Early termination without compensation to landlord

(1) A tenant may give a termination notice for a fixed term agreement on any of the following grounds--

(a) that the tenant has been offered, and accepted, accommodation in social housing premises,

...

(emphasis added)

1. As the tenant was giving notice of a periodic agreement, s 100 has no application. Section 97, set out above, provides the relevant notice period, namely 21 days.
2. It is not to the point what the Fair Trading officer told the tenant. They are not supposed to be giving legal advice and it unlikely in any event that the officer in question was a lawyer. In any event, the advice proffered, as the Tribunal member noted in his oral reasons, was not correct. And it is certainly not to the point what the tenant told another Fair Trading officer after the Tribunal hearing. That transcript does not assist the tenant in any way to identify an error by the Tribunal.
3. We can see no error in the Tribunal's identification of the relevant principles, nor in its application of those principles.
4. Accordingly, we see no reason why there should be a grant of leave in respect of either of these two grounds of appeal.

1. This ground is misconceived. It appears to encompass a new claim of the tenant that she wished to challenge the rent increase notified by the landlord on 29 September 2024.
2. This is not new evidence that was not available at the time of the hearing. Rather, this is a new claim, a claim not previously made by the tenant.
3. The tenant could have sought relief under the RT Act in relation to the increased rent, which by any measure was an enormous increase.
4. However, the tenant did not do so.
5. As this issue was not raised in the proceedings under appeal, it cannot be raised on appeal, As the Appeal Panel stated in Bartel v Ryan [2018] NSWCATAP 231 at [25], the High Court of Australia said in Coulton v Holcombe [1986] HCA 33 at [9] that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27].

1. We consider that the tenant is seeking to challenge findings of fact and reasoning that were clearly open to the Tribunal on the available evidence. Even if a ground for leave to appeal had been established, we would not have granted leave to appeal as we would not have been satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. Thus, the application for leave to appeal has no merit.

(1) The application for leave to appeal is dismissed.

(2) The appeal is otherwise 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.