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[2026] NSWCATAP 291
General information, not legal advice.
NCAT Appeal Panel
2026-09-15
G Sarginson, Deputy President
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Karami v Arruda [2026] NSWCATAP 291
Hearing dates: 18 August 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Jurisdiction: Appeal Panel
Before: G Sarginson, Deputy President
Decision: (1) Leave to appeal refused
(2) Appeal dismissed
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination of residential tenancy agreement for non-payment of rent after previous orders set aside - error on a question of law - denial of procedural fairness – constructive failure to exercise jurisdiction – leave to appeal – significant new evidence not reasonably available at date of the hearing
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 38, 39, 80, Sch 4 cl 12
Civil and Administrative Tribunal Regulation 2022 (NSW) r 9
Civil and Administrative Tribunal Rules 2014 (NSW) rr 23, 25
Residential Tenancies Act 2010 (NSW) ss 13, 33, 81, 82, 83, 87C, 88, 187, 223
Uncollected Goods Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Actgall Pty Ltd (In Liq) v Morella (No 2) [2026] FCA 827
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Azzopardi v Tasman QEB (1985) 4 NSWLR 139
BHP Billiton Ltd v Dunning [2013] NSWCA 421 a
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Boreland v Brewis [2024] NSWCATAP 140
Brentin v Berry [2022] NSWCATAP 388
Bryan v Gorgievski [2015] NSWCATAP 65
Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Capon v Snyman [2014] NSWCATAP 35
Collins v Urban [2014] NSWCATAP 17
Colman v The Owners-Strata Plan 61131 [2025] NSWCA 203
Dakin v ICC Group West Ryde Pty Ltd [2024] NSWCATAP 15
Dokas v Gallagher [2024] NSWCA 223
Donohoe v Alburario [2025] NSWSC 9
Ellery v Commissioner for Police NSW Police Force [2023] NSWCATAP 237
FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 235
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65
Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121
Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465
Higgins v Commissioner for Police NSW Police Force [2025] NSWCATAP 31
Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198
In the Matter of Hillsea Pty Limited [2019] NSWSC 1152
Italiano v Carbone & Ors [2005] NSWCA 177
Kaye v Health Care Complaints Commission [2021] NSWCATOD 228
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lander v NSW Land and Housing Corporation [2025] NSWCATAP 230
Lander v NSW Land and Housing Corporation [2025] NSWCATAP 230
Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mainteck Services Pty Limited v Stein Heurtey SA [2013]
NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
O’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Ros v Commissioner of Police [2020] NSWCATAP 70
Rosen v Louey [2026] NSWSC 1048
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Starr v Johnson [2023] NSWCATAP 190
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Thandi Construction Pty Ltd v Singh [2026] NSWCATAP 7
TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178
Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248
Wollondilly Shire Council v Styles [2024] NSWCATAP 104
Zhang v Pollasky [2023] NSWCATAP 154
Texts Cited: None cited
Category: Principal judgment
Parties: Parvaneh Karami (Appellant)
Leila Arruda (First Respondent)
Craig Turner (Second Respondent)
Bryght Superannuation Pty Ltd ATF Turner Superannuation Fund (Third Respondent)
Representation: A Ashrafinia (Appellant)
First Respondent (Self Represented)
Second Respondent (Self Represented)
C Turner (Third Respondent)
File Number(s): 2026/00214957
Publication restriction: Nil
This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Tribunal dated 15 May 2026 to terminate a residential tenancy agreement for failure to pay rent under ss 81(3), 83, 87C and 187(1)(i) of the Residential Tenancies Act 2010 (NSW) (RT Act).
The Tribunal gave detailed written reasons for the decision. No issue is raised in the appeal that there was an error in the findings of the Tribunal regarding (a) there being a residential tenancy agreement between the parties; and (b) the validity of the notice to terminate or its manner of service (ss 82, 88, and 223 of the RT Act). A critical issue in dispute between the parties at the hearing was the quantum of the agreed rent.
In this decision, any reference to “the tenant” is a reference to the appellant and any reference to “the landlords” is a reference to the respondents.
There is ongoing litigation in the Tribunal between the parties in respect of the Uncollected Goods Act 1995 (NSW). That litigation is not the subject of the appeal and does not require exposition for the purpose of this decision.
On 11 March 2026, the Tribunal made orders at special fixture hearing terminating the tenancy for non-payment of rent.
After a complicated procedural history, those orders were set-aside on 5 May 2026. However, on 29 April 2026, prior to the orders being set-aside, a warrant for possession was executed and the landlord returned to possession of the residential premises. There was no operative Stay on the termination and possession orders when the warrant was executed.
The landlords’ application for termination and possession was re-listed before the Tribunal by way of an expedited hearing on 13 May 2026. The hearing proceeded and the Tribunal reserved its decision.
On 15 May 2026, the Tribunal published orders and reasons terminating the tenancy and ordering an immediate date of possession. The tenant appeals from that decision.
The proceedings were complex. The tenant is the mother of the first respondent. The second respondent is the husband of the first respondent. The third respondent is a company managing the superannuation fund of the second respondent. The person representing the tenant in the Tribunal and appeal proceedings, Ms Ashrafinia, is another daughter of the tenant (i.e. Ms Ashrafinia and the first respondent are sisters).
The tenant’s appeal documents contain a written power of attorney dated 25 March 2026, purporting to give Ms Ashrafinia certain powers. It is unnecessary for the purpose of this decision to explore the legal validity of that appointment. The written reasons of the Tribunal dated 15 May 2026 (at [27]) refer to Ms Arruda having previously held a power of attorney in respect of the tenant. It is also unnecessary for the purpose of this decision to explore the legal validity of that appointment.
At all relevant times Ms Ashrafinia has assisted or represented the tenant in the Tribunal proceedings and the appeal proceedings.
On 11 December 2025, the landlords commenced Tribunal proceedings seeking orders for termination and possession due to non-payment of rent. The application, in “reasons for the orders,” asserts that rent payable is $1,050 per week and the tenant was in rent arrears.
On 16 January 2026, the proceedings were listed for a conciliation and hearing (group list). The Tribunal (Zammit GM) set the matter down for a special fixture hearing, with procedural directions that both parties lodge and serve documents and submissions. A copy of those orders are contained at pp 315-316 of the tenant’s appeal bundle.
The procedural directions provided for the landlords to lodge with the Tribunal and send to the tenant a copy of the documents “already lodged with the Tribunal” by 23 January 2026; the tenant to lodge and send documents relied upon by 6 February 2026; and the landlords to lodge and send documents in reply by 20 February 2026. The Tribunal made the following notation:
“The issue in dispute and to be determined on the next occasion is the landlord’s claim to terminate the tenancy for rent arrears. The Tribunal notes the respondent is raising various issues in defence and will need to provide evidence to support the allegations.”
On 22 January 2026, the Tribunal issued a notice of hearing to the parties that the special fixture hearing was to occur on 18 May 2026.
The landlords then made two Tribunal applications for an expedited hearing, by reason of the alleged large amount of rent arrears. The first application for an expedited hearing was refused and the second application granted.
On 10 February 2026, the Tribunal issued a notice of hearing to the parties that the proceedings were listed for a special fixture hearing at 1.15 pm on 11 March 2026.
On 10 March 2026 there was an adjournment application lodged on behalf of the tenant. The presiding Member (Hung SM) refused the adjournment application when dealing with that application at the hearing on 11 March 2026.
The hearing proceeded with the tenant’s son, Mr Ashrafinia, representing her. The Tribunal made orders terminating the tenancy for non-payment of rent; with the date of vacant possession suspended to 8 April 2026. The Tribunal ordered payment of rent arrears in the amount of $15,000 (the relevant monetary cap for a money order of the Tribunal for rent arrears in the particular RT Act proceedings: Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465 at [110]).
The Tribunal gave detailed written reasons. A copy of the orders and reasons is contained at pp 116-120 of the tenant’s appeal bundle.
The reasons refer to the documents of the landlord being lodged with the Tribunal on 8 January 2026 and 3 March 2026. The tenant’s documents were lodged on 26 February 2026. Ms Arruda, Mr Turner and Mr Ashrafinia gave evidence at the hearing.
The reasons explain why the adjournment application was refused and why the Tribunal was satisfied the tenancy should be terminated. The reasons refer to the Senior Member having considered documents and submissions of both parties, including the documents and written submissions of the tenant that the rent payable was $2,166.67 per month.
The written reasons state that after the Senior Member had given oral reasons at the commencement of the proceedings refusing the adjournment application, the “tenant’s son Mr Ashrafinia” appeared at the hearing. The hearing continued with Mr Ashrafinia participating at the hearing (having presumably been granted leave to do so under s 45 of the NCAT Act). According to the reasons, Mr Ashrafinia not only made oral submissions but gave sworn evidence.
The reasons of the Tribunal refer in detail to the submissions that Mr Ashrafinia made on behalf of the tenant, to the effect that the tenant was paying rent equivalent to $500 per week, rather than equivalent to $1,050 per week. The reasons do not state that Mr Ashrafinia was only representing his mother to seek an adjournment, nor give any indication that his submissions on the issues in dispute were constrained in any way.
The reasons explain why the Senior Member found that the rent payable was $4,550 per month (which the Senior Member found was “approximately equivalent to $1,050 per week”) rather than $2,166.67 per month.
The Tribunal was satisfied that there was a residential tenancy agreement between the parties; the landlord had served a valid notice to terminate for non-payment of rent; the tenant was significantly in rent arrears; and the breach of the agreement was sufficient in the all the circumstances of the tenancy to justify a termination order.
“…
As the record shows and as the tenant’s own application acknowledges, the tenant by her daughter made an application for an adjournment which was refused and the tenant by her son then appeared.
In the words of the Tribunal hearing the matter, “After the above decision (on the adjournment) was given orally, the respondent’s son Mr Ashrafinia arrived at the hearing room. He confirmed that he had authority to represent the respondent, and on that basis the hearing proceeded.”
In the words of the tenant’s daughter in the set aside application, “Although my brother attended the hearing, he was not involved in preparing the case and was not in a position to properly present the Respondent’s evidence.”
The relevant part of the premises of clause 9 of the regulation (sic) is that the applicant seeking to set aside was not at the hearing.
The tenant by her son was at the hearing.
Clause 9 of the regulation is not engaged.
The result is that the application to set aside must be dismissed and the stay put in place on receipt of the application is set aside.”
A second set-aside application under reg 9(1)(b) of the NCAT Regulation was then lodged by the tenant.
On 13 April 2026, De Jersey PM made procedural directions for the parties to lodge and serve documents and submissions to deal with the second set-aside application. Those orders are at pp 334-335 of the tenant’s appeal bundle. De Jersey PM refused to issue an interim stay of the orders for termination and possession. The orders refer to the parties addressing reg 9(6) of the NCAT Regulation, which requires leave to be granted for the lodging of a further set-aside application. Reasons were provided as to why an interim Stay was not granted of the orders for termination and possession.
On 17 April 2026, De Jersey PM refused leave to lodge the second set-aside application. That order and reasons is at pp 336 of the tenant’s appeal bundle.
The tenant then lodged a third set aside application.
On or about 20 April 2026, the landlord obtained a warrant for possession, which was executed by the office of the NSW Sherriff on 29 April 2026 (pp 122-123 tenant’s appeal bundle).
On 30 April 2026, the third set-aside application was listed for hearing before Bateman GM. It was adjourned to 1 May 2026. On 1 May 2026, the third set-aside application was heard. The decision was reserved. Orders and reasons were published to the parties on 5 May 2026.
The third set-aside application was dealt with in orders and reasons of the Tribunal (Bateman GM) dated 5 May 2026. The tenant provided those orders and a copy of the reasons in the appeal materials (pp 165-168 tenant’s appeal bundle).
The decision identified that Ms Ashrafinia represented the tenant and Ms Arruda appeared for the landlords. Each party relied upon documents. The tenants’ documents comprised of “four bundles” that were separately marked as exhibits.
The reasons note that the tenant’s case was that the written residential tenancy agreement relied upon by the landlords was a “sham” and that an oral residential tenancy agreement was in force. The tenant submitted that the rent amount was far less than the landlords asserted, and that the tenant was not in rent arrears.
The Tribunal explained why it was satisfied that leave should be granted under s 41 of the NCAT Act to extend the time period to lodge the set aside application and why leave was granted to lodge the set aside application under cl. 9(6) of the NCAT Regulation.
The Tribunal made orders that the termination and possession orders dated 11 March 2026 were set-aside, with a “notation” that the orders of 11 March 2026 are now “of no effect”.
The reasons stated as follows:
“On the evidence, the Tribunal is satisfied that the tenant was not in attendance at the hearing on 11 March 2026 when the orders for termination were made. The Tribunal is satisfied that the tenant’s son appeared at the hearing. However, the son was not in attendance with sufficient instructions such that the son could have been said to represent the tenant. The son attended for the purpose of seeking an adjournment given the circumstances in which the tenant was unable to attend.”
The Tribunal referred to the principles in Hammond v Ozzy*’*s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 and Bryan v Gorgievski [2015] NSWCATAP 65. The Tribunal found that: (a) the decision was made in the “absence” of the tenant at the hearing; (b) the tenant’s absence resulted in the tenant’s case not being adequately put to the Tribunal; and (c) the Tribunal was satisfied that it should exercise its discretion to set aside the decision of 11 March 2026.
The Tribunal made procedural directions setting the landlords’ termination and possession application down for an urgent hearing on 13 May 2026. Procedural directions were made for the lodging and serving of further documentary evidence. The landlords were to lodge and send to the other party any further documentary evidence relied upon by 8 May 2026; and the tenant was to lodge and send to the other parties any further documentary evidence relied upon by 12 May 2026.
The hearing of the landlord’s termination and possession application was heard on 13 May 2026. At the conclusion of the hearing, the Tribunal reserved its decision.
On 15 May 2026, the Tribunal made its orders and published its written reasons with the orders. The reasons are detailed later in this decision.
On 22 June 2026, the appeal was listed for Call Over and a hearing of the Stay application. Robertson PM made procedural directions for the lodging and serving of documents, submissions, a sound recording and transcript by the parties to prepare the appeal for hearing. The Stay application was dismissed with oral reasons given.
On 25 June 2026, the first and second respondents lodged a Reply to Appeal, which contains a 7 page written submission as to why they oppose the appeal.
On 27 July 2026, the Appeal Panel (Blake PM) made procedural directions extending the time period for parties to lodge and serve their appeal materials. Relevantly, the appellant’s time for compliance for documents, submissions, a sound recording of the hearing under appeal, and transcript was extended to 6 August 2026; the respondent’s time for compliance for documents, submissions, a sound recording of the hearing under appeal, and transcript was extended to 13 August 2026; and the time for compliance for submissions in reply was extended to 17 August 2026.
On 17 August 2026, the appellant lodged an appeal bundle comprising of 392 pages, in addition to a sound recording and transcript of the hearing on 13 May 2026 (tenant’s appeal bundle). The transcript continues line numbers and times that words were spoken at the hearing, but does not identify the name of the person who is speaking.
The Notice of Appeal and Application for a Stay lodged at the commencement of the appeal contained 32 pages.
On 17 August 2026, the respondents lodged written submissions comprising 15 pages.
At the appeal hearing on 18 August 2026, Ms Ashrafinia appeared for the appellant, who did not attend the appeal hearing. Ms Arruda and Mr Turner appeared. Leave was granted under s 45 of the NCAT Act for Ms Ashrafinia to represent the appellant.
The respondents’ stated that the appellant’s documents and submissions had been served electronically upon them a short time before the hearing. However, they were ready to proceed and were not seeking an adjournment. Ms Ashrafinia was also ready to proceed and did not seek an adjournment.
The appeal hearing proceeded, with oral submissions made. Both parties had provided detailed written submissions. The appellant’s written submissions lodged on 17 August 2026 is 27 pages in length. As discussed previously, the tenant also relied upon a copious amount of other documents in the tenant’s appeal bundle.
The tenor of the submissions, both oral and written, demonstrated significant discord between the parties.
The Tribunal ordered that the residential tenancy agreement be terminated immediately as the tenant had “breached the agreement by failing to pay rent or charges.” The Tribunal further ordered that date of possession be immediate.
The written reasons are approximately 4 pages in length (42 paragraphs).
At [2]-[6] the Tribunal briefly set out the procedural history of the matter; the persons appearing at the hearing on 13 May 2026; and the documentary evidence and submissions of the parties.
The Tribunal found at [9] that there was a residential tenancy agreement between the tenant and the landlords with rent of $4,550 per month, equivalent to $1,050 per week. The tenancy commenced on 1 January 2024.
At [10]-[23] the Tribunal referred to the disputed evidence between the parties as to whether the rent amount was $500 per week (the tenant’s position) or $4,550 per month. The tenant had asserted in an affidavit that she had agreed to rent of $500 per week but had been “presented with a written tenancy agreement for her use in dealings with Centrelink but had not signed it”. The tenant agreed that she resided in the premises, which were located in a lower north-shore suburb of Sydney.
The Tribunal stated at [12] the tenant was “not cross examined” at the hearing.
At [11]-[13] the Tribunal stated that the tenant had provided bank statements from National Australia Bank showing payments to the landlords of $2,166.67 per month. However, the tenant’s documentary evidence also included bank statements from the Commonwealth Bank that contained four payments of amounts separate amounts of $2,166.67 and $2,388.33 in the period between January 2024 and late March 2024. Those payments were not addressed in the tenant’s affidavit.
At [14], the Tribunal noted that the representative of the tenant submitted that such additional payments were at the “urging” of Ms Arruda for matters unrelated to rent, and that Ms Arruda denied this. The tenant’s representative did not cross examine Ms Arruda or Mr Clark at the hearing.
At [15]-[17] the Tribunal referred to the landlord’s evidence including statements of Ms Arruda and Mr Clark. The Tribunal referred text messages between the tenant and the landlords on 4 and 5 January 2026 where the tenant requested a copy of the written residential tenancy agreement. A document was sent but the tenant stated that she was unable to sign the document electronically, and requesting the document be printed so she could sign it the following day. The Tribunal stated that the landlord’s documents contained a written residential tenancy agreement dated 1 January 2024 that was purportedly signed by the tenant. However, the Tribunal did not accept that document was the signed written residential tenancy agreement between the parties, by reason of the text message exchange on 4-5 January 2024, and discrepancies between that signature and other documents in evidence signed by the tenant.
“However, the tenant’s own bank records and those of the landlord from the Westpac bank, show payments in amounts totalling $4,550 on 5 January 2024 and 6 January 2024, described as payments for rent. Further, the text message exchanges between Ms Arruda and the tenant on 30 January 2024, where Ms Arruda states “Don’t forget to pay your rent on the 1st” and in response to a question from the tenant “how much was my rent” to which Ms Arruda states “$4,550”. The text message exchange continues but does not disclose any agreement to that amount by the tenant. The bank records corroborate that payments totalling this amount, made to the landlords’ nominated account (being the account of the corporation) accompanied by the appropriate description that the payments are for rent, were made on 5 January 2024 and 6 January 2024.
The bank records then disclose a pattern of payments, with an accompanying description indicating that the payments are for rent until at least April 2024. After that time payments are received into the landlord’s account, effectively totalling $4,550 per month, commonly in the sums of $2,166.67 and $2,383.33 though not invariably accompanied by the description that the payments are for rent until about June 2025, subject to some occasional exceptions, with such failure to pay giving rise to the eventual issue of a termination notice”.
At [19]-[21] the Tribunal dealt with the submission of the tenant that the text messages were “fabrications” and that the payments made by the tenant were for other things and manipulated, or disguised, by Ms Arruda as rent payments. The Tribunal rejected those submissions.
At [22]-[25] the Tribunal dealt with the submissions of the tenant that the rent could not be $1,050 per week as she could not afford such an amount and was significantly greater than rent amount of $500 per week in a previous tenancy agreement. The tenant also submitted that the landlord’s rent ledger was “unreliable.” The Tribunal rejected such submissions, as the bank records were indicative of a monthly rent amount equivalent to $1,050 per week; the rent ledger reflected what was in the contemporaneous bank records; and the “evidence of the premises presented, such as it was” did not establish rent equivalent to $1,050 could not have been “at a market rate”. The Tribunal was also not satisfied that bank records had been “tampered with.”
At [25]-[27] the Tribunal deal with other submissions of the tenant. The Tribunal was not satisfied that Ms Arruda had acted “unconscionably” towards her mother in circumstances where she held a power of attorney in respect of the tenant from August 2024, and there were two other parties who were joint landlords.
At [28], the Tribunal rejected the submission that the landlords held $12,000 as a bond amount, and that amount should be paid towards any rent arrears.
At [29], the Tribunal rejected the submission that there were “inconsistencies” between the rent ledger relied upon by the landlords in earlier Tribunal proceedings and the rent ledger relied upon by the landlords in these proceedings. The Tribunal again referred to the rent ledger in the current proceedings being “largely consistent” with the parties bank records.
At [30], the Tribunal found as follows:
“Based on consideration of the evidence, the Tribunal finds that there was a tenancy agreement between the parties. That agreement was in writing but not signed by the tenant. Nevertheless, the terms of the agreement were set out in writing in an unsigned document dated 1 January 2024, and in the text messages between Ms Arruda and the tenant in January and March 2024. The fundamental term of the agreement was that rent was $4,550 per month, equivalent to $1,050 per week. It was not $550 (sic) per week.”
“The grounds set out in the Notice of Termination have been established. The rent had remained unpaid for not less than 14 days on the day the notice was served or deemed served (served 25 November 2025). At that time, the arrears were equivalent to at least 3 months rent.
…
The tenants (sic) have not paid all the rent owning and are currently significantly more than 14 days in arrears, being in the vicinity of 9 months in arrears”.
At [37]-[40] the Tribunal set out why, in all the circumstance of the case, the breach was sufficiently serious to justify termination of the tenancy.
At [41]-[42] the Tribunal stated:
“This matter is unusual in that a warrant for possession has been executed and the landlord is presently in possession of the premises. However, and for the avoidance of doubt, the Tribunal makes an order for possession effective immediately to the extent that it is necessary.
To the extent that there are personal items belonging to the tenant remaining at the premises the Tribunal recommends that the parties organise an orderly transition so that the tenant may collect her belongings. The Tribunal recommends the tenant obtain independent legal advice.”
The grounds of appeal are identified in Annexure A to the Notice of Appeal. The errors on a question of law are identified as follows:
Denial of procedural fairness.
Failure to provide adequate reasons.
Failure to consider evidence.
The grounds also refer to a “failure to apply the principles of natural justice” (which is a different way of describing denial of procedural fairness); and a “miscarriage of justice.” The “miscarriage of justice” is identified as
“three hearings in 13 days-combined with the late and incomplete service of financial evidence, deprived the appellant of the ability to present a defence. Furthermore, the reliance on contested documentary evidence (including tracking data and a disputed condition report) without proper scrutiny raised substantial concerns regarding the reliability of the Tribunal’s factual findings.”
The grounds of appeal further set out that leave to appeal is sought. The grounds for leave to appeal are:
The decision was not fair and equitable. This is identified as “three Tribunal hearings in a 14 day period (30 April-13 May 2026), which with a “compressed timetable” and “administrative delays in receiving orders” caused “substantial practical prejudice”. The tenant was not able to adequately respond to the documentary evidence of the landlords, in circumstances where the landlords evidence was provided “shortly before the hearing.” The Tribunal accepted the landlords’ rent ledger “as fact without requiring substantiation for disputed entries” and “failed to reconcile” discrepancies between the “different versions” of the landlords’ financial records.
Decision against the weight of evidence. This identified as the Tribunal relying upon the landlords’ bank records and ledger despite “material inconsistencies and unresolved reliability concerns.” This is further elaborated upon as accepting the landlords’ evidence despite the findings regarding the written residential tenancy agreement; failing to “reconcile” the landlords’ ledger in circumstances where it listed payments the tenant had “never made” and finding that the tenant had been served with evidence when she had not. The tenant also dispute the findings that were made regarding the “bond.”
Significant new evidence. The tenant asserts that she relies upon bank records and Australia Post collection records that were not in evidence at the hearing and were not reasonably available.
The tenant’s written submissions lodged on 17 August 2026 (27 pages in length) identify the appeal grounds as:
Ground 1-Failing to “determine the appellant’s urgent restitution application”. This ground is based on the miscellaneous matters application. The tenant submits that the Tribunal erred by not hearing and determining her application to be put back into possession of the residential premises before the landlords’ termination and possession application was heard. The tenant cites Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 (Hopkins) at [105] to argue that once the termination and possession order was set aside, the landlord “must permit the tenant to retake possession pending redetermination of the termination proceedings” (tenant’s submissions at [32]).
The tenant then submits that the Member stated at the hearing that he had not considered the tenant’s “restitution application,” and that failure to consider the “restitution application” was a “jurisdiction issue” that needed to be determined at the commencement of the hearing, and a constructive failure to exercise jurisdiction. The tenant cites Lander v NSW Land and Housing Corporation [2025] NSWCATAP 230 at [7] and Colman v The Owners-Strata Plan 61131 [2025] NSWCA 203 at [24]-[25].
“Important information Regarding Depositor Details
For both ATM and branch cash deposits, the Bank does not capture or retain information identifying the individual making the deposit.
For ATM deposits, only the card number (if used) or mobile number (for cardless deposits) is recorded.
For branch (over the counter) cash deposits, unless a bank issued deposit slip is used (generally only available for large withdrawals), no deposit-identifying documentation is retained.
As a result, we are unable to confirm the identity of the individual(s) who made these cash deposits.”
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
An appeal under s 80(1) of the NCAT Act from a final Tribunal decision is focussed upon whether the appellant has established an error on a question of law; or otherwise (if leave to appeal is sought) leave to appeal is granted based upon the evidence and submissions before the Tribunal and the manner in which the Tribunal hearing was conducted. In certain circumstances, fresh or further evidence can be admitted (Ros v Commissioner of Police [2020] NSWCATAP 70 at [29]-[43]).
The Appeal Panel has a discretion to conduct a new hearing if grounds of appeal warrant it (s 80(3) NCAT Act). In this matter, no application was made under s 80(3) of the NCAT Act. In any event, the grounds of appeal do not warrant a new hearing under s 80(3) of the NCAT Act.
An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law is an appeal made as of right and does not require leave. A mixed error of fact and law requires leave to appeal.
In Cusumano at [33], the Appeal Panel stated the categories of questions of law are ”not closed”; and at [37] stated:
“[37] What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51.”
It is unnecessary for the purpose of this decision to set out all the examples of an error on a question of law that were discussed in Cusumano.
However, an error on a question of law may arise in the circumstances including the following:
Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]-[39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J));
No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J));
A constructive failure to exercise jurisdiction, in the sense of a failure to consider a ”substantial, clearly articulated argument relying upon established facts” that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).
Applying the wrong legal principle (identified in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]-[43] and the authorities cited therein).
Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]–[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.
(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).
“[76] … 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.”
Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited therein).
The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has 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, it would be in the interests of justice for it to be reviewed.
12 Limitations on internal appeals against Division decisions
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(2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if—
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(b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
“[121] The submission that the Appeal Panel had no jurisdiction to make orders that have the effect of allowing the tenant to re-take possession after a warrant has been executed is also inconsistent with cl. 12(2)(b) of sch. 4 of the NCAT Act. That provision provides that an appeal from an order of the Tribunal terminating a residential tenancy agreement is limited to an error on a question of law if “a warrant for possession has been executed in relation to that order.” If the legislature intended that a tenant could not appeal because a warrant had been executed and the landlord had taken possession, it would have explicitly said so. The right to appeal is enshrined in s 80 of the NCAT Act, with the relevant limitation under cl. 12 of sch. 4 being that it is restricted to error on a question of law, rather than on grounds that require leave to appeal.”
“[23] In this case, the tenant has left the premises following execution of a warrant for possession. Clause 12(2)(b) of schedule 4 to the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides that an appeal against an order for termination of the tenancy under the RT Act where a warrant of possession has been executed in relation to that order is not competent except on a question of law.
…
[30] Where an appeal is against an order of the Tribunal for the termination of the tenancy under the RT Act and a warrant of possession has been executed in relation to that order, then an appeal may only be made on a question of law (as of right) and not on any other grounds (even with leave): see clause 12(2)(b) of schedule 4 to the NCAT Act.”
Clause 12(2)(b) of Sch 4 of the NCAT Act does not apply if a warrant has been issued, but its execution has been stayed by order of the Tribunal or a court prior to determination of the appeal (Capon v Snyman [2014] NSWCATAP 35 at [47]).
In this matter, the landlords obtained a warrant in circumstances where no operative Stay was in force of the orders of 11 March 2026 at the time the warrant was obtained and executed. In those circumstances, the execution of the warrant was not, at the time it was obtained and then executed, unlawful or invalid (Dokas v Gallagher [2024] NSWCA 223 at [4]), notwithstanding that the orders for termination and possession upon which the warrant was based were subsequently set aside.
However, where the orders for termination and possession have been set aside after the execution of the warrant, and then a fresh decision has been made for termination and possession, cl 12(2)(b) of Sch 4 does not apply. Clause 12(2)(b) of Sch 4 of the NCAT Act only applies where the warrant “has been executed in relation to that order” under appeal. The warrant was executed in relation to the orders of 11 March 2026. The orders under appeal are from the decision of 15 May 2026. No warrant was executed in relation to the orders of 15 May 2026, because the landlord was in possession of the premises and it was unnecessary to execute a warrant in circumstances where the order for termination and possession was made “immediately”.
Accordingly, the tenant can appeal both on an error on a question of law and on grounds requiring leave to appeal under s 80(2) of the NCAT Act, and is not restricted to error on a question of law.
9 Additional power to set aside or vary decision determining proceedings—the Act, s 90(2)(a)
(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if—
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(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.
The orders of 11 March 2026 were not made “in the absence” of the tenant.
The reasons of 11 March 2026 make clear that the tenant’s son appeared shortly after the commencement of the hearing and participated in the hearing as her representative. The tenant’s submission in the third set-aside application was that Mr Ashrafinia had only attended the Tribunal hearing on 11 March 2026 to apply for an adjournment and was not “properly instructed” to argue her case. However, it is clear from the reasons that he participated in the hearing as the representative of the tenant, and also gave evidence.
In Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104 (Li), where a party appeared at the appeal hearing; the decision was reserved; and then after orders and reasons were issued the party made a set aside application under reg 9(1)(b) of the NCAT Regulation, the Appeal Panel stated at [6]-[8]:
“Meaning of “decision … made in the absence of a party”
[6] The Tribunal may reserve its decision in relation to any proceeding: Civil and Administrative Tribunal Act 2013 (NSW), s 56. Reserving a decision means that instead of giving its reasons at the end of the hearing, the Appeal Panel gives the decision and the written reasons to the parties later. A decision determining an internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision: NCAT Act, s 61. The date of decision appears on the front cover sheet of the reasons for decision. That is the date that the decision is made available to the parties.
[7] The reference to a decision being made in the absence of a party in clause 9(1)(b) of the NCAT Regulation, is a reference to a decision being made at the end of a hearing where one party has not attended. It is not a reference to the Tribunal reserving its decision and giving a decision and written reasons later. That is because reserved decisions are made in private and no party will ever be present at the time the decision is made.
Was Mr Li’s case adequately put to the Tribunal?
[8] If we are wrong in the conclusion we have reached about the meaning of the phrase “decision … made in the absence of a party”, we would still not set aside or vary the Appeal Panel’s decision. Mr Li attended the appeal hearing and made submissions. His absence at the time the decision was made in private by the Appeal Panel did not result in his case not being adequately put to the Appeal Panel.”
In FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 235 (FVA), the Tribunal (Simon PM) briefly considered what “absence of a party” meant in circumstances where a party did not appear at the hearing; the Member telephoned the party; and the party disconnected the call soon after being contacted (FVA at [19]-[21]). FVA does not contain any detailed analysis of what “in the absence of a party” means, other than stating that Li was distinguishable on the facts. Although Simon PM found the decision was made in the absence of the party, the Principal Member was not prepared to exercise the discretion in favour of setting aside the decision, and the set-aside application under reg. 9(1)(b) of the NCAT Regulation was dismissed.
In Ka**ye v Health Care Complaints Commission [2021] NSWCATOD 228 (Kaye), the Tribunal (Isenberg SM) refused an application to extend time under s 41 of the NCAT Act to lodge a set-aside application under reg. 9(1)(b) of the NCAT Regulation. In Kaye, after a long procedural history including an appeal to the Appeal Panel that is unnecessary to detail, the applicant was legally represented by Counsel on the first day of the hearing, but Counsel could not appear on the second day of the hearing. The Tribunal refused an adjournment of the second day of the hearing and the matter proceeded in the absence of the applicant, including taking into account written submissions prepared by the applicant’s Counsel. Isenberg SM stated at [23]:
“[23] Subclause 9(1)(b) requires both the absence of a party and for the Tribunal to be satisfied that, as a result of that absence, the party’s case was not adequately put. Consequently, Mr Kaye was not only present and/or legally represented as a party in the hearings, but also his case was clearly adequately argued. The requirement under cl 9(1)(b) of the Regulation has not been met; Mr Kaye was either present and/or legally represented as a party for each of the hearings and his case was adequately put.”
The appearance of a representative of a party is regarded as the appearance of a party (Actgall Pty Ltd (In Liq*) v Morella (No 2)* [2026] FCA 827 at [1] and [5], in the context of the power of the Federal Court to enter a default judgement).
The reasons of Hung SM on 11 March 2026 make clear that the decision was not made in the absence of the tenant at the hearing. The tenant’s son appeared, made submissions on her behalf, and gave evidence.
The decision of 5 May 2026 focused upon whether the tenant’s son adequately put her case to the Tribunal, and concluded he did not. The test under reg 9(1)(b) of the NCAT Regulation is not simply whether a party who attended a hearing, either in person or by a representative on their behalf, adequately put the party’s case to the Tribunal. If that were the test, any party would be able to argue that the decision should be set aside under reg 9(1)(b) of the NCAT Regulation because they, or their representative, did not adequately argue the case. That is inconsistent with the principle of finality of litigation, unless there is a specific legislative provision that allows an order to be set-aside or varied, or otherwise set aside by way of an appeal.
The Tribunal’s decision to set aside the orders of 11 March 2026, would have raised a jurisdiction issue if the Tribunal exercised a power it never had. However, it is unnecessary to further explore this issue.
Under s 188(b) of the RT Act, the Tribunal has a separate power to set aside an RT Act decision, even where parties or representatives appear. That power is not unlimited. It’s scope is not an issue that requires discussion in this decision, although the principles in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17] in the context of the power to vary or set-aside a judgement or order under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) may be of assistance by way of analogy. It is sufficient for the purpose of this appeal that there was a jurisdictional power to make the orders of 5 May 2026, even if the Member’s reasons erroneously focus upon reg 9(1)(b) of the NCAT Regulation as the basis to grant the set aside.
“[6] The premise underlying a ”constructive” failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved. By contrast, a failure to give adequate reasons implies that the relevant issues have been identified, addressed and resolved, but the reasons for reaching the conclusion have not been adequately expressed.”
The tenant submits that there was an application by the tenant to be “restored” to the premises (in circumstances where the Tribunal had previously set-aside the orders for termination and possession made on 11 March 2026), which should have been dealt with as a preliminary issue and was “unresolved” or ignored by the Tribunal. According to the tenant’s appeal bundle, the application had been lodged on about 8 May 2026.
There is a brief exchange early at the hearing (pp 6-7 of the transcript) where Ms Ashrafinia refers to the tenant having made “separately an urgent application for repossession” that had been “made to NCAT” shortly before the hearing on 13 May 2026. Ms Arruda stated that the landlords had not been sent this application, but the tenant had sent a large amount of material “last night.” Ms Ashrafinia asserted that the tenant had not provided a “full bundle” until just prior to the hearing because the landlords had delayed in providing documentary evidence.
The Member asked Ms Ashrafinia to provide “it” (i.e. the application for “repossession”) to the landlords, and Ms Ashrafinia replied “Yes.” The hearing then moves to the landlords’ application for termination of the residential tenancy, with most of the evidence and submissions dealing with the disputed factual issue as to what was the agreed weekly rent amount.
As discussed previously, the tenant’s appeal bundle does not identify with any clarity the circumstances of purportedly lodging the “application for repossession” with the Tribunal on or about 8 May 2026. At pp 130-214 (according to the index to the tenant’s appeal bundle) there is, what the tenant submits, was an “urgent request for ex parte interim order for restitution”, which according to the tenant’s written chronology in the bundle, was lodged with the Tribunal on 8 May 2026 together with documents, submissions, and a copy of the Appeal Panel decision in Hopkins.
However, the Tribunal application form at pp 134-136 is blank, and there is no seal of the Tribunal to indicate that an application was lodged. Nor is there any email conformation from the Tribunal Registry acknowledging the “urgent request for ex parte interim order for restitution” was lodged with the Tribunal.
Even if it is accepted that there was an application by the tenant to be restored into possession of the premises after the set-aside of the orders for termination and possession in circumstances where no miscellaneous matters application was lodged with the Tribunal Registry (which would involve dispensing with the provisions in r 23(1) of the NCAT Rules by way of the interaction between ss 38(1) and 39 of the NCAT Act), there is no constructive failure to exercise jurisdiction.
The hearing was listed on 13 May 2026 to determine the landlords’ application for termination of the residential tenancy agreement for non-payment of rent. That is clear from the orders of 5 May 2026. It was not clearly raised on 13 May 2026 that the Tribunal must make an order restoring the tenant back into possession of the premises (which, in the relevant circumstances, would be an order that the landlord comply with the terms of the residential tenancy agreement by allowing the tenant back into possession) before it could determine the landlord’s application for termination of the residential tenancy agreement. The transcript (at p 4) refers to (presumably) Ms Ashrafinia asserting the Tribunal had a “burden” to determine the issue of putting the tenant back into possession of the premises, but there is a lack of clarity as to whether the tenant was seeking that issue be determined as a preliminary issue and why it should be determined as a preliminary issue.
“[117] In this matter, the tenancy terminated under s 81(3) of the RT Act by order of the Tribunal. Despite the landlord making submissions that the tenant voluntarily relinquished the tenancy, that clearly did not occur. He was removed from the premises by way of enforcement of a warrant for possession. The only reasons the landlord was able to take possession of the premises was (a) the Tribunal terminated the tenancy; and (b) the order was able to be enforced by the obtaining of a warrant for possession under s 121 of the RT Act.
[118] Here, the warrant for possession issued by the Registrar under s 121 of the RT Act was based upon an order of the Tribunal that contained an error of law. The preferred option open to us to address that error of law is to exercise our discretion under s 81 of the NCAT Act by setting aside the order and remitting the matter back to the Tribunal for redetermination according to law.
[119] Discretionary considerations aside, to assert that the Appeal Panel is thereby creating a “new” tenancy is incorrect. If the order for termination and possession is set aside, the previous tenancy is revived. If the tenancy is a fixed term tenancy agreement (s 3 of the RT Act) then the fixed term period and rights and obligations of the parties apply. If the tenancy is periodic (s 18 of the RT Act) the rights and obligations of the parties under a periodic agreement apply.
[120] If the fact that a landlord has entered into possession after a warrant for possession is executed renders an appeal nugatory, an illogical outcome will occur. The tenant, despite successfully demonstrating an error on a question of law, will be unable to re-take possession of the residential premises. In those circumstances, the only remedy of the tenant in remitted proceedings would be a monetary remedy ( the Tribunal on remittal having no power to create a new tenancy agreement, but able to make orders regarding the existing one when revived by the set aside order on appeal). We note that any claim for damages is subject to the monetary jurisdiction of the Tribunal under s 187(4)(a) of the RT Act and cl 40 of the Residential Tenancies Regulation 2019 (NSW).
[121] The submission that the Appeal Panel had no jurisdiction to make orders that have the effect of allowing the tenant to re-take possession after a warrant has been executed is also inconsistent with cl. 12(2)(b) of sch. 4 of the NCAT Act. That provision provides that an appeal from an order of the Tribunal terminating a residential tenancy agreement is limited to an error on a question of law if “a warrant for possession has been executed in relation to that order.” If the legislature intended that a tenant could not appeal because a warrant had been executed and the landlord had taken possession, it would have explicitly said so. The right to appeal is enshrined in s 80 of the NCAT Act, with the relevant limitation under cl. 12 of sch. 4 being that it is restricted to error on a question of law, rather than on grounds that require leave to appeal.
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[130] In our view, the lodging of an appeal after the execution of a warrant for possession does not, of itself, deprive the Appeal Panel from having the power to set aside the original orders for termination and possession.
[131] However, that does not mean that the Appeal Panel will always make orders that set aside the original orders for termination and possession. There are discretionary reasons why the Appeal Panel may refuse to set aside the orders for termination and possession, even if they contain an error on a question of law. For example, if the landlord had entered into a new residential tenancy agreement with a new tenant, then displacing the new tenant (who has an interest in the land) to restore the former tenant may not be appropriate. A tenant bringing an appeal has the ability to avoid this occurring by seeking a stay from the Appeal Panel under s 43(3) of the NCAT Act (see, for example, Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 for a discussion of the principles pertaining to obtaining a stay) and the failure to do so may cause the Appeal Panel to dismiss the appeal because the new tenant should not be displaced. Here, the tenant obtained a stay order to the effect that the landlord not relet the premises before the Appeal is decided, thereby preserving the status quo and preventing the residential premises being re-let.
[132] A further relevant circumstance affecting the discretion would be if the landlord moved into the property to reside in it after the landlord had obtain possession by way of the execution of the warrant.
[133] However, none of those circumstances apply in this matter. There are no doubt other factors which may impact on the discretion to set aside possession orders and warrants based on a decision containing an error of law.
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The factual circumstances of this matter are different. The Tribunal set-aside the orders for termination and possession. The Tribunal then dealt with the landlord’s termination application. Hopkins is not authority for the proposition that the tenant must be “restored” by way of orders of the Tribunal before the Tribunal can again deal with the landlords’’ termination application. Hopkins was dealing with a situation where an appeal to the Appeal Panel was successful and the matter remitted back to the Tribunal.
Had the landlords’ failed in the application for termination and possession in the decision of 15 May 2026, the considerations referred to in Hopkins at [117]-[121] and [130]-[133] would have arisen. However, the Tribunal terminated the tenancy in the decision of 15 May 2026, and those considerations did not arise.
The tenant submits that the Tribunal “misdirected itself” by the Member making comments at the commencement of the hearing as to there “may be an issue” as to whether the Tribunal had the power to “reinstate the tenancy” and enquiring whether the tenant sought to take proceedings in the Supreme Court. The Member stated that, if the tenant made such an application “I could stay the current proceedings until determination of that application,” or “alternatively we can have a hearing today and see what the outcome is.” Those comments do not establish any error on a question of law, such as the Member applying a wrong legal principle. The Member was simply raising a potential jurisdiction issue for the parties to consider and make submissions about. Ms Ashrafinia informed the Tribunal that the Tribunal proceedings should proceed.
The tenant submits that the Tribunal raised an “unresolved jurisdiction issue” by referring to uncertainty about the power of the Tribunal to “restore” a tenancy when a warrant had been executed. The Tribunal cites Lander v NSW Land and Housing Corporation [2025] NSWCATAP 230 (Lander). However, that decision does not assist the tenant. In Lander, the Appeal Panel allowed an appeal and dismissed the Tribunal proceedings for want of jurisdiction where the Tribunal had awarded compensation to a tenant in proceedings brought beyond the relevant limitation period (without extending the limitation period) and for breach of s 120(2) of the RT Act, which is a penalty provision. In this matter, the Tribunal clearly had jurisdiction to terminate the residential tenancy agreement, in circumstances where the previous termination order was set aside and the proceedings listed for hearing on 13 May 2026 required determination of the landlord’s application for termination.
The tenant’s submissions also refer to Colman v The Owners-Strata Plan 61131 [2025] NSWCA 203 (Col**man) at [24]-[25]. That matter involved an appeal from the Supreme Court (which dealt with an appeal from the Appeal Panel) where the NSW Court of Appeal refused leave to appeal and dismissed an appeal in a strata matter. restates principles previously referred to in respect of constructive failure to exercise jurisdiction. The Court of Appeal stated at [24]-[25]:
“[24] As subsequently explained in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [15]:
“A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] (Bell, Gageler and Keane JJ) and [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.”
[25] As the analysis in Ming at [15]-[17] shows, a constructive failure to exercise jurisdiction requires more than a failure to consider evidence or address an argument or submission. It requires a failure to understand and determine central or critical elements of the case or claim or a fundamental misunderstanding of the nature of an application: see eg Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] and CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57 at [34].”
For reasons previously expressed, there was no constructive failure to exercise jurisdiction by reason of the Tribunal not determining any application by the tenant to be restored to the residential premises as a preliminary issue before determination of the landlords’ termination application.
The tenant’s submissions refer to “prejudice” to her in circumstances where the tenant was not restored to physical possession before the termination application was heard. No such prejudice is established, and in any event no constructive failure to exercise jurisdiction is established.
This submission is, in substance, that the Tribunal applied the wrong legal principle by reason of the Member’s comments about the potential that the Tribunal did not have jurisdiction to “restore” the tenancy, without reference to Hopkins.
That issue has been dealt with previously in these reasons. To recapitulate, there was no appropriate basis to determine any application by the tenant for her to be put back into physical possession of the property before the landlords’ application for termination was dealt with, in circumstances where (a) it was unclear the tenant had made a formal application to the Tribunal for such an order before 13 May 2026; (c) even if such an application was made, there was no appropriate basis to deal with it as a preliminary issue and bifurcate the hearing (c) the landlords’ application for termination was listed for hearing on 13 May 2026; and (d) the tenant being in physical possession of the residential premises was not a jurisdictional fact essential for the Tribunal to have jurisdiction to order the termination of the tenancy.
Accordingly, there was no application of a wrong legal principle.
The operation of s 38(2) of the NCAT Act and the principles of procedural fairness have been discussed in many Appeal Panel decisions. It is unnecessary to refer to them all, or a substantial number of them. A detailed summary of the principles and legal authorities is contained in O*’Brien v Women’*s Housing Company Limited [2026] NSWCATAP 3 at [136]-[147] and [159]-[162]. A critical enquiry is whether a party has had a reasonable opportunity to be heard and make submissions. Fairness is not an abstract concept, and the concern is to avoid practical injustice. A hearing can be conducted in an efficient and procedurally fair manner even if it was not a perfect hearing.
In Boreland v Brewis [2024] NSWCATAP 140 the Appeal Panel stated at [60]-[62]:
“[60] It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] and [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]-[38]).
[61] The appellant raised a denial of procedural fairness as a ground of appeal, noting that, in respect of a self-represented non-legally trained party, the Appeal Panel must consider the substance of what is raised as the grounds of appeal (see e.g. Cominos v Di Rico [2016] NSWCATAP 5 at [13]). Whether there has been a breach of procedural fairness raises a question of law: see e.g. Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117.
[62] Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal’s decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal’s decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.
On the issue of materiality, the applicable test is whether the decision made could realistically have been different if there was no error (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ-see also the discussion by Griffiths AJ in Rosen v Louey [2026] NSWSC 1048 at [33]-[34]).
The tenant submits that there was a denial of procedural fairness due to not having an adequate opportunity to consider the landlords’ documents prior to the hearing on 13 May 2026 where:
(a) The landlords’ documents were served electronically a short time before the hearing, with the tenant only having “one effective business day” to review the landlord’s documents before the hearing, due to the “compressed timetable” of the Tribunal. (b) The tenant had raised the landlord providing “incomplete documents” on a number of occasions during the course of the proceedings. (c) The landlord had not complied with procedural directions to provide documents in hard copy at the hearing.
The submission that there was a “compressed timetable” does not engage with the full procedural history of the litigation.
When the application was lodged by the landlords with the Tribunal in December 2025, it was clear the landlords were asserting that the rent was $1,050 per week. On 16 January 2026, Zammit GM set the landlords’ application for termination and possession down for hearing, with a procedural timetable for the lodging and serving of the documents the parties were relying upon.
The reasons of Hung SM on 11 March 2026 refer to each party having lodged documents that they relied upon as evidence, with the landlords’ documents being a bundle lodged on 8 January 2026 and the tenant’s documents lodged on 26 February 2026.
During the course of the set aside applications, there were procedural direction involving the lodging and serving of documents and submissions pertaining to the particular set aside application. The orders of 5 May 2026 which granted the set-aside application listed the landlords’ termination application for hearing on 13 May 2026, with the landlords directed to lodged and serve documents by 8 May 2026 and the tenant to lodge and serve documents by 12 May 2026.
The tenant’s documents attached to the Notice of Appeal at pp 25-30 contain email correspondence between Ms Ashrafinia (on behalf of the tenant) and the Tribunal regarding purported non-service of some documents of the landlords. That correspondence was passed onto the landlords. However, the correspondence commences on 22 February 2026 and ends on 2 April 2026. The landlords, in their emails, dispute that documents relied upon by the landlords have not been served, and assert that further copies have been sent. That correspondence does not assist the tenant’s submissions.
In the context of that procedural history, it is clear the tenant had documents of the landlords before 12 May 2026. Although the tenant submits she received the landlords documents “effectively one business day” before the hearing, the submissions fail to identify when the tenant received documents of the landlord in respect of the landlords’ application for termination of the residential tenancy that was heard on 11 March 2026, or precisely when the landlord served further documents on the tenant after 11 March 2026. The submissions also fail to identify what further documentary material (i.e. material in addition to the material the landlords had served prior to the hearing on 11 March 2026), or how those fresh documentary materials (if any) were unable to be properly considered before the hearing on 13 May 2026 such that the tenant did not have a reasonable opportunity to be heard.
A simple assertion that the tenant did not receive the landlords’ “complete bundle” fails to address what further documents were served after the hearing on 11 March 2026 by the landlords and how the purported late service of material affected the tenant’s ability to present her case and have her submissions considered.
Section 13(1) of the RT Act defines a residential tenancy agreement as “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”. Under s 13(2) of the RT Act, a residential tenancy agreement can be express or implied, and can be oral or in writing or partially oral and partially in writing. “Rent” is defined in s 3 of the RT Act as “an amount payable by a tenant under a residential tenancy agreement for the right to occupy premises for a period of the agreement”. Payment of rent is term of the residential tenancy agreement and assessment of what is the rent amount payable is assessed objectively. The obligation to pay rent is referred to in s 33(1) of the RT Act.
Depending on the particular circumstances of the appeal, inadequate reasons may, or may not constitute an error on a question of law giving an appeal as of right, or constitute an error of mixed fact and law that requires leave to appeal (Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [31]-[32]; Higgins v Commissioner for Police NSW Police Force [2025] NSWCATAP 31 at [15]; Ellery v Commissioner for Police NSW Police Force [2023] NSWCATAP 237 at [17]; Starr v Johnson [2023] NSWCATAP 190 at [48]). Examples of where inadequate reasons constitute an error on a question of law are where they demonstrate a constructive failure to exercises jurisdiction; or demonstrate a denial of procedural fairness; or demonstrate the wrong legal principle being applied to the facts.
The principles for adequacy of reasons are identified in NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [65]-[77]. A critical issue is whether the reasons meet the “minimum characteristics” for sufficiency.
The tenant’s written submissions on this issue are at pp 33-35 of the tenant’s appeal bundle.
The tenant accepts that the Tribunal’s factual findings on what was the agreed rent amount under the residential tenancy agreement between the parties was based upon consideration of the parties bank records; text message exchanges; and the “pattern of payments” arising from the contemporaneous records.
The tenant submits that the reasons “do not adequately explain why those transactions established that the payments were made by, or properly attributable to, the appellant, or why they established that the parties had agreed to rent of $4,550 per month after the Tribunal had found the written tenancy agreement had not been signed by the tenant”.
The tenant acknowledges that the Tribunal was not bound to accept the tenant’s documentary evidence that the agreed rent was $500 per week, but should have explained why the bank records referred to supported the finding that he payments were for rent, rather than payments for other things. According to the tenant, no “evidentiary path” had been identified.
A decision is against the weight of evidence if “the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach” (Collins v Urban at [77(2)] citing Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42 and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]).
The tenant has failed to establish the decision was against the weight of evidence. The issue upon which most of the evidence and submissions focussed upon was the agreed rent amount payable under the residential tenancy agreement. The Tribunal considered the evidence of both parties, in particular the contemporaneous bank records and text messages. The Tribunal made factual findings based upon its analysis of the evidence. The test is not whether a different Tribunal may have made different factual findings on the same evidence, but whether the decision is against the weight of evidence. The tenant has failed to satisfy the applicable test.
The significant new evidence not reasonably available to the tenant is (a) the information from the Commonwealth Bank dated 25 June 2026 and text messages “confirming” the tenant’s mobile phone number (pp 73-75 tenant’s tender bundle); and (b) the information from Australia Post regarding tracking a delivery in the period from 6 March 2026 to 16 March 2026.
The tenant’s submissions on the admission of “significant new evidence” and why it establishes that leave to appeal should be granted, are at pp 35-37 of the tenant’s appeal bundle.
The tenant’s submissions do not address the Australia Post document. Rather, they focus upon the letter from the Commonwealth Bank about cash deposits. The tenant’s written submissions contain a limited explanation as to why this evidence was not reasonably available prior to the hearing on 13 May 2026. The explanation is that the tenant made “repeated enquiries” with the Commonwealth Bank “over a number of months,” but was not provided the information until 25 June 2026.
The tenant submits that the new evidence not before the Tribunal is significant because it contradicts evidence of Ms Arruda at the hearing that she “never” made cash deposits into the tenant’s Commonwealth Bank account, and, further, that it “bears directly upon the critical question identified in Ground 4: whether the banking transactions relied upon by the Tribunal were properly attributable to the appellant”.
In Zhang v Pollasky [2023] NSWCATAP 154 (Harrowell DP and Blake SM) the Appeal Panel stated at
“[38] The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd (t/as Furnco Bankstown) [2015] NSWCATAP 111 (Al-Daouk) at [23].”
Even if evidence is new evidence that was not reasonably available, it needs to be “significant” in the sense of bearing upon the issues in dispute in the decision under appeal such that there was a “significant possibility” or “a chance that was fairly open” that a different and more favourable result would have occurred (Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121 at [80]-[87]).
The Appeal Panel is not satisfied that the evidence of the Commonwealth Bank and Australia Post was not reasonably available at the hearing. The evidence relates to ATM cash deposits in the period from January 2024 to April 2025. The Tribunal proceedings commenced on 11 December 2025. It was clear from the application lodged by the landlords that the landlords were asserting the agreed rent was equivalent to $1,050 per week. The proceedings had a long procedural history, which has been detailed previously. To the extent that the tenant asserted that cash deposits into her Commonwealth Bank account had relevance to the issue of the agreed rent amount, there was a reasonable opportunity to obtain that evidence prior to the hearing on 13 May 2026.
Further, it has not been established that the new evidence is “significant.” The reasons of the Member focus on the amounts paid by the tenant to the landlords from her NAB and Commonwealth Bank accounts and the surrounding contemporaneous documentation to determine, assessed objectively, what was the agreed rent pursuant to the terms of the residential tenancy agreement. The correspondence from the Commonwealth Bank refers to cash deposits into the tenant’s account, and states that it cannot identify the identity of the person(s) who made the cash deposits. The evidence is not evidence of further or different payments to the landlord. The submission of the tenant that the evidence goes “beyond” the credibility of the landlords and goes to whether banking transactions of any type were attributable to the tenant is a broad submission that does not establish the new evidence is significant, even if the evidence was not reasonably available.
The tenant has also failed to establish that the tracking information from Australia Post is significant new evidence.
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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. Registrar
Karami
Arruda
[2026] FCA 827
[1990] HCA 33
[2010] HCA 1
[2000] HCA 57
[2006] HCA 63
[2003] HCA 6
(2020) 103 NSWLR 479
(1990) 170 CLR 321
(1985) 4 NSWLR 139
(1991) 173 CLR 33
(2010) 239 CLR 531
(2010) 241 CLR 390
(2024) 280 CLR 321
(2019) 100 NSWLR 578
(2000) 204 CLR 82
(2001) 206 CLR 1
(1987) 163 CLR 54
(1968) 118 CLR 186
(2022) 109 NSWLR 604
(2019) 264 CLR 421
(2022) 96 ALJR 497
(2021) 285 FCR 447
(2006) 228 CLR 152
(2010) 241 CLR 252
(2003) 214 CLR 1
(2022) 276 CLR 80
The reasons of the Senior Member also state that immediately after the hearing concluded Ms Ashrafinia arrived and “expressed her dissatisfaction in relation to my decision on the respondent’s adjournment request.” The Senior Member informed Ms Ashrafinia that it was open to the tenant to obtain a sound recording of the hearing and to lodge an appeal.
The tenant then applied to have the orders of 11 March 2026 set-aside under reg 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation).
The first set aside application was lodged on 18 March 2026. After various procedural directions and an interim Stay order, the set aside application was dealt with on 7 April 2026.
On 7 April 2026, the Tribunal (Ash GM) dismissed the set-aside application. That decision is contained at pp 332-333 of the tenant’s appeal bundle. Written reasons were provided. The reasons state:
At [17] the Tribunal found it was “not satisfied” that the written residential tenancy agreement in the landlords’ documents “was in fact signed by the tenant on 1 January 2024”.
At [18]-[19] the Tribunal referred to the evidence contained in the bank records of the parties and text messages. The Tribunal stated:
It is further submitted that by failing to determine the tenant’s “restitution application,” the Tribunal “reversed the logical and legal order in which the issues fell to be determined” (tenant’s submissions at [44]) and the tenant suffered “material prejudice”.
Ground 2-The Tribunal “misdirected itself as to the legal consequences of the setting aside of the termination and possession orders”.
The tenant submits that the Tribunal Member expressed a view that the Tribunal may not have jurisdiction to restore possession to the tenant, which was a “misdirection” because it was inconsistent with Hopkins. The tenant then makes submissions about Hopkins, and repeats the argument that the Tribunal was bound to determine the “urgent restitution application” because the termination and possession order, and consequential enforcement of the warrant, became a “nullity” once the set-aside application was granted.
The tenant further submits that there was no independent documentary evidence to support any submission by the landlords that the premises had been re-let to a different tenant after 29 April 2026.
Ground 3-Denial of Procedural Fairness. The tenant submits that she was denied procedural fairness for the following reasons:
Prior to the “original hearing” (i.e. the hearing on 11 March 2026) the landlords “had failed to comply with the Tribunal’s earlier directions requiring disclosure of evidence” and the hearing on 13 May 2026 proceeded under a “compressed timetable” with the tenant having “only one effective business day” to consider the landlords’ evidence. Further, the landlords had not “fully disclosed” all of the documentary evidence in their possession, despite the tenant making requests for documents.
The tenant submits that the landlords had failed to bring with them a hard copy of their bundle of documents at the hearing on 13 May 2026, despite a direction to do so. The tenant’s submission at pp18-19 of the written submission (pp 30-31 of the tenant’s appeal bundle) acknowledges that when Ms Ashrafinia raised this issue at the hearing, the Tribunal Member offered to adjourn the hearing and have the documents photocopied, but Ms Ashrafinia had responded “I think I should be able to rely on my phone…I mean it’s fine. I don’t want to make us late. Thank you.”
The tenant submits that the “cumulative effect” of the issues identified deprived her of a reasonable opportunity to be heard.
Ground 4-Indaequte evidentiary basis and inadequate reasons for the finding that the agreed rent was $1,050 per week.
This is dealt with at pp 21-23 of the tenant’s submissions (pp 33-35 tenant’s appeal bundle).
The tenant submits that the reasons of the Tribunal do not “adequately explain” why the bank records of transactions and text messages are for rent rather than other payments. No “logical and evidentiary path” to the finding that rent was $4,550 was demonstrated in the reasons.
The tenant submits “in the alternative” that if the Tribunal’s reasons are read as “treating the banking transactions as determinative of the contractual agreement without first identifying the legal basis upon which the agreement arose after finding the agreement had not been signed by the tenant” the Tribunal had “failed to ask itself the correct questions arising under the governing statutory framework.” The submission cites Dakin v ICC Group West Ryde Pty Ltd [2024] NSWCATAP 151 at [62]-[63] and [67]. However, the submission does not clearly articulate what is the “correct questions” the Tribunal should have considered and determined.
New or Fresh Evidence. At pp 23-25 of the tenant’s submissions (pp 35-37 of the tenant’s appeal bundle) the tenant refers to new or fresh evidence that was not before the Tribunal that the tenant seeks leave to rely upon in the appeal and as a basis for granting leave to appeal.
The new or fresh evidence referred to in the submissions is at pp 73 to 75 of the tenant’s appeal bundle.
At pp 73-74 is an email to Ms Ashrafinia from the Commonwealth Bank dated 25 June 2026. It is a response to a “complaint” of Ms Ashrafinia to the bank in respect of “cash deposits into your mother’s account for the years 2024 and 2025”. There is an acknowledgement that Ms Ashrafinia has provided a copy of the power of attorney, and that the bank has “completed a review of the requested transactions.”
No information is provided as to when the complaint was made by Ms Ashrafinia such that it can be determined whether the information was sought before, or after, the decision under appeal.
The Commonwealth Bak sets out various cash deposits into the tenant’s account in the period from 9 January 2024 to 20 June 2024. Deposits are identified from (a) a bank card issued to the tenant; (b) cardless cash deposits (with the last 4 numbers of a mobile phone number identified); and (c) branch cash deposits. The letter concludes as follows:
Even if the tenant sought that such an order be made by way of dealing with it as a preliminary issue on 13 May 2026 and the landlords’ application for termination be adjourned to a later date there would be no appropriate basis to grant an adjournment of the landlords’ application for termination and possession, with regard to the adjournment principles summarised in Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248 at [3]-[11].
A tenant does not have to be in physical possession of the premises for the Tribunal to have jurisdiction to terminate a residential tenancy agreement for breach due to non-payment of rent. To bifurcate the hearing to determine an application by the tenant to be allowed back into physical possession of the premises as a preliminary issue to be determined would be contrary to the guiding principle in s 36(1) of the NCAT Act, and contrary to the principle in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [170] (per Kirby and Callinan JJ) that separate determination of issues in separate hearings should be approached with caution and “only be embarked upon when their utility, economy, and fairness to the parties are beyond question”.
Critical issues for determination on 15 May 2026 were: (a) whether there was a residential tenancy agreement between the parties; (b) what was the agreed rent amount; (c) whether a notice to terminate had been validly issued in accordance with the applicable provisions of the RT Act; (d) whether proceedings had been commenced by the landlord within the requisite time period under the RT Act; (e) whether the breach of the agreement was sufficient in all the circumstances of the tenancy to justify termination; and (f) if termination of the RT agreement was ordered, whether the date of vacant possession should be suspended for a period of time.
The Tribunal dealt with those critical issues. There was no appropriate reason to deal separately, as a preliminary issue, with any application by the tenant to be restored to the property before the landlords’ application for termination was heard.
The tenant’s submissions refer extensively to the Appeal Panel decision in Hopkins. Hopkins involved a social housing tenant whose tenancy was terminated due to breach of the term of the agreement requiring the premises to be kept reasonably clean. The tenant did not attend the hearing. The Member gave oral reasons. A warrant for possession was obtained by the landlord and executed by the Sherriff. The tenant then lodged an appeal, and a Stay was granted restraining the landlord from renting the property to a new tenant until the appeal was determined. The appeal succeeded, for reasons that involved denial of procedural fairness and failure to consider mandatory considerations under s 154E of the RT Act.
In respect of whether a tenant could be “restored” to a tenancy after a warrant for possession has been executed but the decision upon which the warrant was based was set aside under s 81 of the NCAT Act because the appeal was allowed, the Appeal Panel stated at [117]-[121] and [130]-[133]:
In respect of the purported late service of documents, there is reference in the transcript to the issue of an adjournment being raised, although it is unclear whether that is being raised by the landlords’ or the tenant. In any event, no adjournment was pressed, and when Ms Ashrafinia complained that the landlords’ had not provided a hard copy of their documents, the Member offered to adjourn the hearing and arrange for the documents to be printed in hard copy and provided to Mr Ashrafinia. Ms Ashrafinia declined that offer, and the hearing proceeded. In circumstances where no adjournment was pressed after the issue was raised, and Ms Ashrafinia stated she was content to refer to her copy of the landlords’ documents in an electronic form at the hearing, no denial of procedural fairness is established.
The tenant submits that the landlords had previously sent “incomplete” documents and the tenant had requested further documents. However, the obligation was on the landlords to prove their case, including providing, on the balance of probabilities the agreed rent amount and that the amount of rent arrears was sufficient, in all the circumstances, to terminate the tenancy. Any deficiencies in the landlords’ evidence was a matter for submissions at the hearing, and the tenant had a reasonable opportunity to adduce her own documentary evidence on the issue of the agreed rent amount and the quantum of rent arrears.
The tenant did not raises as a ground of appeal that she was denied procedural fairness by the Member not giving her the opportunity to apply for an adjournment (Italiano v Carbone & Ors [2005] NSWCA 177 at [112]), or refusing to grant an adjournment (Thandi Construction Pty Ltd v Singh [2026] NSWCATAP 7 at [129]-[145] and the authorities discussed therein).
The Appeal Panel is not satisfied that the tenant has established a denial of procedural fairness in all the circumstances of the matter, and in particular, the conduct of the hearing on 13 May 2026.
The Appeal Panel is not satisfied that the reasons were so inadequate that an error on a question of law is established. The reasons explain in sufficient detail why the Tribunal was satisfied on the basis of the contemporaneous records the agreed rent was to the equivalent of $1,050 per month. In circumstances where there was substantial discord between the parties and divergence between the evidence of the parties as to what was the agreed rent, there was nothing inappropriate or unorthodox about the Tribunal giving significant weight to the contemporaneous documentary evidence (In the Matter of Hillsea Pty Limited [2019] NSWSC 1152 at [16]-[21] and the authorities referred to therein).