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[2026] NSWCATAP 214
General information, not legal advice.
NCAT Appeal Panel
2026-07-07
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: Kelly v NSW Land and Housing Corporation [2026] NSWCATAP 214
Hearing dates: 26 May 2026; 23 June 2026
Date of orders: 07 July 2026
Decision date: 07 July 2026
Jurisdiction: Appeal Panel
Before: G Sarginson, Deputy President
Decision: (1) The application to extend time to lodge the appeal is refused.
(2) Leave to appeal refused.
(3) Appeal dismissed.
(4) Stay orders of the Appeal Panel dated 13 March 2026 are lifted immediately.
(5) Order 3 of the Tribunal dated 16 January 2026 is varied such that the order for possession is suspended until 28 August 2026.
Catchwords: APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing – consent orders terminating tenancy – whether consent vitiated
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Regulation 2022 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Housing Act 2001 (NSW)
Residential Tenancies Act 2010 (NSW)
Cases Cited: Aboriginal Housing Office v Harrison [2021] NSWCATAP 97
Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Astley v JH Properties Pty Ltd [2017] NSWCATAP 181
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40
Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18
Azzopardi v Tasman QEB (1985) 4 NSWLR 139
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Collins v Urban [2014] NSWCATAP 17
Dannoun v NSW Land and Housing Corporation [2024] NSWCATAP 120
Donohoe v Alburario [2025] NSWSC 9
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99
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
McDonald v McDonald [2016] NSWCATAP 252
McLean v Bridge Housing Limited [2020] NSWCATAP 232
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99
Nelson v Auberson [2019] NSWCATAP 241
Pineiro v Sultana [2025] NSWCATAP 132
Polamarasetty v Denny [2025] NSWCATAP 249
Prenc v Stojcevski [2016] NSWCATAP 224
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
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7
TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178
Turk v NSW Land and Housing Corporation [2017] NSWCATAP 207
Turnbull v Bridge Housing Limited [2021] NSWCATAP 18
Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
YRF v Karnikowski [2025] NSWCATAP 19
Texts Cited: None cited
Category: Principal judgment
Parties: Julie Kelly (Appellant)
NSW Land and Housing Corporation (Respondent)
Representation: D Farrow, M Hurley (Agents) (Appellant)
Department of Communities and Justice Legal (Respondent)
File Number(s): 2026/00067185
Publication restriction: Nil
In this decision, any reference to “the tenant” is a reference to the appellant, and any reference to “the landlord” is a reference to the respondent.
This is an appeal by an 87 year old social housing tenant against consent orders made by the Tribunal on 16 January 2026 under the Residential Tenancies Act 2010 (NSW) (RT Act) that relevantly terminated the residential tenancy agreement for breach of the agreement due to non-payment of rent, and ordered rent arrears be paid in the amount of $12,654.28.
The consent orders suspended the date of vacant possession under s 114 of the RT Act until 17 February 2026. Other orders were made for payment of an occupation fee and providing the landlord with an opportunity to re-list the proceedings to determine any occupation fee during the period from the date of termination to the date vacant possession is obtained.
The grounds upon which the tenant appeals the decision are that the tenant did not understand the orders, or was placed under duress or undue influence by the landlord’s representative, or the landlord’s representative otherwise engaged in unconscionable conduct that caused the tenant to agree to the orders.
The submissions of the tenant assert that, at the hearing on 16 January 2026, she attended the Tribunal with her daughter (Ms Farrow) and her granddaughter (Ms Hurley). The transcript of the hearing, and the sound recording of the hearing involving the making of the consent order indicated that the tenant and the representative of the landlord were the only persons who spoke to the Member in the course of the Member determining whether it was appropriate to make the consent order.
In oral submissions on 23 June 2026, Ms Farrow and Ms Hurley confirmed that they were present in a conciliation room with the tenant and spoke to the representative of the landlord. They were also present in the hearing room with the tenant when the Tribunal Member was informed by the representative of the landlord the parties had reached a consent agreement and the Tribunal Member determined it appropriate to make the consent orders.
The tenant has lived in the premises, which are located in a suburb south of Newcastle NSW, for approximately 22 years. The tenant stated in her submissions that she was, for a long period of time, involved with the Salvation Army. Ms Farrow and Ms Hurley stated in oral submissions at the appeal hearing on 23 June 2026 that the tenant’s husband, and the tenant, had been captains in the Salvation Army. They submitted the tenant was a regular churchgoer.
In 2024, the tenant’s husband passed away. On 7 June 2024, the tenant entered into a written residential tenancy agreement with the landlord. The written agreement states that no more than 1 person may ordinarily reside at the premises at any one time. Clause 58 of the written agreement stipulates that the tenant must give the landlord written notice of any change in the household, or additional persons residing at the premises.
On 15 May 2025, the landlord wrote to the tenant that the landlord had obtained information that there were a number of unauthorised occupants living at the premises (7 persons). The persons identified included Ms Hurley. The landlord requested that the tenant attend an interview.
On 27 June 2025, the landlord wrote to the tenant stating that the rent subsidy under s 57(1) of the Housing Act 2001 (NSW) was cancelled effective of 16 June 2025, and the rent payable would be market rent of $410 pw from that date. The letter provided information as to how that decision could be appealed and where advice could be obtained from a tenant’s advice and advocacy service. The rent was subsequently increased to $440 pw.
After the cancellation of the rent subsidy, the tenant’s rent arrears increased significantly over the next 6 months. In oral submissions at the appeal hearing on 23 June 2026, Ms Farrow and Ms Hurley submitted this was caused or contributed to by problems or difficulties with the tenant’s social security direct debit.
In about November 2025, the landlord took Tribunal proceedings against the tenant. On 12 December 2025, the Tribunal made orders that the tenant pay rent arrears of $10,104.28 by instalments. The tenant nor any family Members attended the Tribunal on 12 December 2025. The orders of the Tribunal state the tenant has applied to attend by telephone or video link, but that application had been denied.
On 16 December 2025, the landlord issued a notice of termination under the RT Act for breach of the agreement due to non-payment of rent. The arrears amount identified in the notice was $10,292.89. The notice identified the date of vacant possession as 31 December 2025.
On 2 January 2026, the landlord commenced Tribunal proceedings. The orders sought included termination of the tenancy due to non-payment of rent. The application identified that the landlord sought a finding under s 89(5) of the RT Act that the tenant had frequently failed to pay rent.
Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) the time period to lodge an internal appeal to the Appeal Panel in residential tenancy proceedings is 14 days from the date the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later) unless time is extended under s 41 of the NCAT Act.
The applicable date from which time commences is 16 January 2026 The appeal was lodged on 17 February 2026. It is out of time, unless time is extended under s 41 of the NCAT Act applying the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22].
Grounds of appeal of an unrepresented litigant are to be considered in substance, subject to (a) ensuring procedural fairness is given to both parties; and (b) the Appeal Panel not inventing a ground of appeal that has not been identified and raised in substance.
The Appeal Panel identifies the grounds of appeal as follows:
The conduct of the representative of the landlord constituted duress; unconscionable conduct; mistake, or undue influence that vitiates the consent agreement.
The tenant was a vulnerable person and did not provide actual consent to the orders.
The tenant did not understand the orders.
The Member did not adequately enquire whether the tenant understood and consented to the orders and did not properly invoke r 37 of the NCAT Rules.
The Notice of Appeal asserts that when the tenant attended the Tribunal she sought to negotiate a “payment plan” (i.e. orders known as a ‘specific performance order’ where the Tribunal does not terminate the tenancy, but orders are made that arrears be paid in instalments in addition to rent being paid, with the landlord having the opportunity to re-list the proceedings if the tenant does not comply with the order), but in the conciliation room the representative of the landlord “bullied” the tenant and her family members by asserting that no negotiation would be entered into and the tenant must agree to a termination order.
The tenant’s documents and submissions were lodged on 2 March 2026. Further, a brief email from the tenant was sent to the Appeal Panel on 22 June 2026.
The tenant’s documents comprised of the following:
A very brief statutory declaration of a neighbour, Ms Sams, dated 28 February 2026. That statutory declaration does not deal with the events on 16 January 2026. It has meagre relevance to the issues for determination in the appeal.
A written statement of Ms Farrow dated 25 February 2026. The statement asserts that when Ms Farrow, Ms Hurley and the tenant entered conciliation room with the representative of the landlord, he was “rude and disrespectful.” The representative of the landlord was not prepared to consider a “payment plan” and asserted the landlord sought a termination order with the landlord only being prepared to compromise by not seeking a finding under s 89(5) of the RT Act if the matter proceeded to hearing. According to Ms Farrow, the representative said the landlord would obtain a warrant and evict in short notice if the tenant did not agree the proposed orders and the tenant could not appeal any signed consent agreement. According to Ms Farrow, “other” representatives from the landlord had told the tenant and her relatives that the landlord “always wins” at the Tribunal, and the tenant thought she had no choice but to agree.
The statement asserts that when the tenant, Ms Farrow and Ms Hurley entered the hearing room, the representative of the landlord told the Member that the tenant had been told she could not appeal from consent orders, and the Member had stated this was incorrect. According to Ms Farrow, the tenant “felt she couldn’t step up and say that she didn’t agree with it” when the consent orders were made. The statement also contains superfluous comments about the conduct of the landlord that is irrelevant to the events on 16 January 2026. The statement concludes by referring to the age and good character of the tenant, including her service as a retired Salvation Army officer.
In respect of the events of 16 January 2026, the tenant states she was “stressed”; “confused” and “had a family member there who I asked to leave who wouldn’t”. The statement refers to the granting of a Stay, and the tenant obtaining “further medical evidence and other evidence.” The statement asserts the tenant was currently paying the market rent and could pay the arrears at a further $100 per fortnight. The statement attaches a Centrelink income statement.
At the appeal hearing on 23 June 2026, Ms Farrow and Ms Hurley made submissions on behalf of the tenant. Relevantly, they asserted that at the conciliation they, and the tenant, felt they could not speak due to the alleged manner and words of the representative of the landlord. Submissions were made about the circumstances in which the rent subsidy was cancelled and problems regarding direct debit and the “forms” that the landlord wanted completed.
In respect of what occurred at the hearing before the Member made the consent orders, Ms Farrow and Ms Hurley accepted that the Member had not told them they could not speak, and had asked the tenant to confirm that she agreed with and understood the orders before the Tribunal Member made the orders. Neither Ms Farrow or Ms Hurley raised with the Member before the consent orders were made that the landlord’s representative had engaged in any intimidatory conduct and that the agreement was not entered into freely and voluntarily, with knowledge and understanding of what had been agreed to.
Ms Farrow and Ms Hurley asserted that they were silent because, based on their perception of the words and conduct of the landlord’s representative, they felt they could not speak and raise any issue about the proposed consent orders with the Member before the orders were made.
On the issue of why the appeal had been lodged out of time, Ms Farrow and Ms Hurley submitted that they had sought advice from a tenants advice and advocacy service and Legal Aid NSW in respect of the appeal. They were under the misapprehension that the tenant had 28 days from the date of the decision to appeal, and thought that Legal Aid NSW were going to act until they were informed that NSW Legal Aid were not going to act.
The Appeal Panel raised at the hearing that, if the appeal was dismissed, the period for the landlord to obtain a warrant under the RT Act had expired, and the landlord would have to make an application to the Tribunal to extend time to obtain a warrant. If time was extended because the tenant had appealed the decision and orders of the Tribunal, the landlord would then be able to arrange for execution of the warrant at short notice.
The Appeal Panel pointed out that it had the power when an appeal was dismissed to vary the date of suspension of possession and enquired as to what period of time would be appropriate in the circumstances if that power was invoked. Ms Farrow and Ms Hurley stated that the tenant would be “homeless” because no family member could assist her. Ms Farrow and Ms Hurley gave various reasons as to why they could not assist the tenant with accommodation. No submission was made about any other sources of assistance to the tenant, such as the Salvation Army, and whether or not other sources of assistance had been explored.
Ms Hurley submitted that the tenant would need “at least 60 days” to find accommodation. It was also asserted that Ms Hurley believed, based on a recent conversation she had with a representative of the landlord that what the landlord was focussed upon was Ms Hurley and other unauthorised occupants vacating the property. Ms Hurley stated she was likely be able to remove her “stuff” (including two caravans situated on the property) by the end of July. Ms Hurley also submitted that she did not live at the property permanently, but left her “stuff” at the property and spent time at the property assisting and caring for the tenant.
The respondent primarily relied upon its written submissions of 8 May 2026, contained with the bundle of documents referred to previously.
The respondent’s submissions contain a partial written transcript of the hearing on 16 January 2026 where the Member made the consent orders. A sound recording of the hearing was also provided by respondent.
The respondent’s submissions are summarised as follows:
Consent orders can only be set aside on the limited grounds identified by the Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252 (McDonald) at [59].
None of the grounds to vitiate a consent order are established. There was no duress, mistake, undue influence, unconscionable conduct or misrepresentation. At the hearing, the Member asked the tenant whether she understood and agreed to the orders, and explained that if the tenant paid the rent arrears by the date of vacant possession in the orders the lease would remain on foot. The tenant stated that she agreed to and understood the orders before the orders were made. The tenant had a reasonable opportunity to raise with the Member if she did not understand or agree to the orders before the orders were made.
No extension of time should be granted for the lodging of the appeal as the appeal has no merit.
In oral submissions, the landlord added that there was no contravention of r 37 of the NCAT Rules, in circumstances where the tenant’s daughter and granddaughter were present with her at the hearing.
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]).
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.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1)(a)-(c) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(a) The decision of the Tribunal under appeal was not fair and equitable; or (b) The decision of the Tribunal under appeal was against the weight of evidence; or (c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
“… 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.
The Appeal Panel is not satisfied that the grounds of the appeal warrant a new hearing under s 80(3) of the NCAT Act such that there should be a hearing de novo of the landlord’s termination application. Accordingly, the appeal is an appeal under s 80(1) of the NCAT Act, where the Appeal Panel focusses upon the material before the Tribunal at first instance to determine whether the decision under appeal is the subject of some legal, factual or discretionary error that constitutes an error on a question of law, or otherwise leave to appeal should be granted (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at (McNeill) [29]-[31]).
In this matter, although it was not provided as evidence in the appeal by either party, the sound recording of the hearing on 16 January 2026 indicates that the proposed consent orders were set out in a signed written agreement of the parties. The Tribunal had the power to make the consent orders (Aboriginal Housing Office v Harrison [2021] NSWCATAP 97) subject to being satisfied of the jurisdictional matters referred to in Dannoun v NSW Land and Housing Corporation [2024] NSWCATAP 120 (Dannoun) at [52]-[57] and [93].
There was no suggestion in this matter the notice to terminate was not valid; or had not been validly served; or the tenant was not more than 14 days in rent arrears when the notice was served, or that the tenant remained in significant rent arrears when the matter was before the Tribunal on 16 January 2026.
No issue was raised in the appeal by the tenant that s 154E of the RT Act applies to a signed consent agreement to terminate a tenancy by reason of breach of the RT Act due to non-payment of rent, as distinct from a hearing on the merits where there is no consent to termination of the tenancy for breach.
There is no suggestion in the Appeal Panel authorities dealing with an appeal from a consent order involving a social housing tenant terminating a residential tenancy agreement for breach that the considerations in s 154E of the RT Act must be satisfied before a consent termination order for breach can be made (Dannoun; Soueid v St George Community Housing Limited [2023] NSWCATAP 202; Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 (Naish)). The comments of the Appeal Panel in Naish at [23] and [39]-[40], taking into account the observations of the Appeal Panel in Prenc v Stojcevski [2016] NSWCATAP 224 at [91], support the proposition that the Tribunal does not have to be satisfied of the matters in s 154E of the RT Act before making a consent social housing termination order for breach of the agreement, including breach for non-payment of rent.
The Appeal Panel retains a discretion in appeals under s 80(1) of the NCAT Act to allow further or additional evidence if it is in the interests of justice to do so ( at [39]). In circumstances where there is a dispute about whether consent orders should be vitiated due to the type of conduct identified in at [59], it is appropriate to consider evidence that explains the circumstances in which the consent orders were made ( at [22]-[23]).
“[59] A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities):
(1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside;
(2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like;
(3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance:
(a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit;
(b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence;
(4) With respect to mistake:
(i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party’s motives for entering into the contract;
(ii) a common mistake arises when the mistaken belief is held by both parties;
(iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake.
(5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be ”special” to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.
(6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.”
Duress is limited to circumstances where there is threatened or actual unlawful conduct involving the person, or the person’s commercial and financial interests (Turk at [56]-[59] and the authorities referred to therein).
Unconscionable conduct in its particular statutory context has been considered in Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 at [92] (per Allsop CJ, Besanko and McKerracher JJ) as involving “…a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience and so be characterised as unconscionable” (even if not necessarily involving the taking advantage of a person with a pre-existing disadvantage, disability, or vulnerability); or conduct of such a degree that it can be characterised as victimisation, exploitation, predatory, or conduct so outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience (Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 (per Kiefel CJ and Bell J at [14]; Gaegler J at [92]; Keane J at [118])).
In respect of the making of consent orders, r 37 of the NCAT Rules states:
37 Matters that may be taken into account when exercising settlement powers
(1) When deciding whether to make orders to give effect to a settlement reached by parties to proceedings, the Tribunal is to take into account the interests of any vulnerable person (whether or not a party to the proceedings) if the Tribunal considers that—
(a) the person may be directly affected by the orders because the person is a party to, or the subject of, the proceedings concerned, and
(b) it is appropriate to do so in the circumstances.
(2) Nothing in this rule limits the matters to which the Tribunal may have regard when deciding whether to make orders to give effect to a settlement.
(3) In this rule—
vulnerable person means—
(a) a minor, or
(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.
“[38] Rule 37 says that when the Tribunal is deciding whether to make consent orders it “is to take into account” the interest of any vulnerable person. Those words denote a mandatory action.
[39] However, those mandatory words are later followed by “if the Tribunal considers that” which is then followed by sub-rules (a) and (b). The word “and” between those two sub-rules, in this context, appears to us to be conjunctive.
[40] Therefore, on our reading of the rule, the mandatory taking into account of the interests of a vulnerable person only arises if and when the Tribunal decides (“if the Tribunal considers”) that both sub-rules (a) and (b) are satisfied. If a Tribunal does not consider that both sub-rules (a) and (b) are satisfied, then it would not be required to take the vulnerable person’s interest into account.”
In the circumstances of this appeal, it is appropriate to consider the partial transcript of what occurred at the hearing on 16 January 2026 as well as the sound recording.
The sound recording of the hearing of 16 January 2026 is of approximately 6 minutes 20 seconds duration. The representative of the landlord informs the Member that the parties have resolved the dispute by way of an agreed “pay and stay” termination order. The representative of the landlord states that the tenant has been informed that consent termination orders can’t be appealed. The Member corrects the representative of the landlord by stating that consent orders can be appealed.
The tenant answered “Yes, yes” after the Member explained that the agreement, when made into orders, meant the tenancy ended on 16 January 2026 and the tenant had to vacate by 17 February 2026, but if the tenant paid amounts outstanding by 17 February 2026 the landlord “won’t be able to enforce the order”.
The Member then reviews the documents that have been provided by the landlord and states that she is satisfied that that there is a residential tenancy agreement between the parties; the notice of termination is compliant with the requirements of the RT Act, and that the tenant was significantly in rent arrears at all relevant times with the amount exceeding $10,000. The Member states the tenant has breached the residential tenancy agreement. The Member states she is satisfied the Tribunal has power to make the consent orders.
The Member states that the orders mean that the tenancy is terminated with the date of vacant possession suspended until 17 February 2026, but if the tenant pays the rent arrears amount in the orders by the date of vacant possession in the orders, she may remain in the premises and the lease will not end.
Before the orders were made, the following was said:
Member: …Ms Kelly, do you consent to these orders?
Tenant: Yes
Member: Do you have any questions?
Tenant: No
The tenant has failed to establish any of the grounds to vitiate a consent order identified in McDonald at [59]. The tenant is an elderly person. The Appeal Panel accepts that she was likely under stress by reason of the amount of rent arrears; the prospect that the tenancy would be terminated; and the refusal of the landlord to engage in negotiations for a specific performance order. The representative of the landlord may have spoken to the tenant, Ms Farrow and Ms Hurley in a firm or impolite manner, but even if the version of events of the tenant, Ms Farrow and Ms Hurley is accepted, the conduct of the landlord’s representative does not constitute duress; undue influence; or unconscionable conduct.
There was no medical evidence provided to the Tribunal, or in the appeal, that the tenant had any cognitive impairment or physical or mental condition that prevented her from understanding and agreeing to the orders. The Appeal Panel is not satisfied there was any mistake as to the nature or effect of the orders.
The tenant had with her at the Tribunal, both in the negotiations with the landlord’s representative and before the Member, her adult daughter and adult granddaughter in support. They did not raise, on their own version of events, with the landlord’s representative, that the tenant did not understand or agree to the orders. They raised no concern with the Member before the orders were made.
The Appeal Panel is not satisfied the Member did not consider r 37 of the NCAT Rules when determining it appropriate to make the consent orders. The tenant was elderly, but there was nothing to indicate to the Member that the tenant was, due to her age, or any medical condition, totally or partially incapable of representing herself in the Tribunal proceedings. There was also no identification in the appeal as to what interests of the tenant were not taken into account when making the consent orders.
No type of conduct sufficient to vitiate the consent orders is established. There is no mistake; undue influence; duress; unconscionable conduct or failure to engage with r 37 of the NCAT Rules. As discussed previously, the Tribunal had the jurisdictional power to make the consent orders. The fact that the tenant now regrets agreeing to the orders does not establish any error on a question of law or, otherwise, that leave to appeal should be granted.
No error on a question of law, or basis for granting leave to appeal, is established. Irrespective of whether the Appeal Panel grants an extension of time to lodge the appeal, the appeal does not succeed on its merits.
Under s 81(1)(b) of the NCAT Act, the Appeal Panel has the power to vary a decision under appeal when determining an internal appeal if it considers it appropriate in light of its decision. It is appropriate to do that and vary the date of vacant possession in the orders of the Tribunal the subject of this appeal in circumstances where, because an appeal has been lodged and a Stay granted of the orders under appeal, the period in which the landlord may apply for a warrant under the RT Act has expired.
As the tenancy is a social housing tenancy, under s 154G of the RT Act, the date of vacant possession cannot be suspended for more than 28 days from the date of the termination order unless there are “exceptional circumstances”.
Ms Hurley submitted that it may take the tenant 60 days (i.e. 8.5 weeks) to find alternative accommodation; and that Ms Hurley would remove her belongings (and any occupancy of the premises) by the end of July 2026.
The Appeal Panel is satisfied that the age of the tenant and the length of time she has resided in the premises (for periods during which she was an occupant while her husband was the tenant; and then her tenancy) constitute exceptional circumstances under s 154G of the RT Act.
Weighing considerations involving the age of the tenant; the time she has resided in the property (as an occupant with her husband, and then as a tenant); the personal circumstances of the tenant; and the amount of rent arrears; it is appropriate to vary the date of suspension of vacant possession in the orders of the Tribunal to 28 August 2026. That gives the tenant further time to obtain any appropriate assistance and advice as well as arrange alternative accommodation unless the provisions of ss 89(3)-(4) of the RT Act arise.
The orders of the Tribunal were made without any finding under s 89(5) of the RT Act. Accordingly, the tenant continues to have the benefit of ss 89(3) and (4) of the RT Act. Those provisions state:
89 Repayment of rent and charges owing following issue of non-payment termination notice
…
(3) A termination of the residential tenancy agreement solely on the ground of non-payment of rent, water usage charges or utility charges, and any warrant for possession issued as a result of any order for possession, cease to have effect if the tenant pays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord and the tenant has not vacated the residential premises.
(4) If a tenant repays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord, the landlord must notify—
(a) the Tribunal, if the landlord has applied to the Tribunal for a termination order on the ground of non-payment of rent, water usage charges or utility charges and the application has not been finally dealt with, or
(b) the Sheriff, if a termination order has been made and a warrant for possession of the residential premises has been issued but has not been enforced by the Sheriff.
Maximum penalty—20 penalty units.
(5) The Tribunal may, on application by a landlord, make a termination order despite subsection (2) or (3) if it is satisfied that the tenant has frequently failed to pay either or both of the following amounts owing to the landlord for the residential premises—
…
“[22] The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
In this matter, although the delay is for a relatively short period of time, the reason for the delay is misunderstanding of the applicable limitation period and the mistaken belief that NSW Legal Aid were acting for the tenant. Those reasons are not compelling, noting the appeal was filed on the day when vacant possession was due pursuant to the Tribunal orders.
The Appeal Panel is not satisfied that there is an appropriate basis to extend the time period to lodge the appeal under s 41 of the NCAT Act, in circumstances where the explanation for the delay is not persuasive, and if time was extended leave to appeal would be refused and the appeal dismissed in any event because no error on a question of law; or grounds to grant leave to appeal, have been established.
**********
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
Kelly
NSW Land and Housing Corporation
[1990] HCA 33
[2010] HCA 1
[2000] HCA 57
(2020) 103 NSWLR 479
(1990) 170 CLR 321
(2021) 285 FCR 133
(2019) 267 CLR 1
(1985) 4 NSWLR 139
(2010) 239 CLR 531
(2010) 241 CLR 390
(2000) 204 CLR 82
(1987) 163 CLR 54
(1968) 118 CLR 186
(1998) 195 CLR 516
(2007) 71 NSWLR 61
The proceedings were listed for a conciliation and group list hearing before the Tribunal on 16 January 2026. The practice of the Tribunal is to list a number of such residential tenancy matters during the course of the day.
As discussed previously, the tenant, her daughter Ms Farrow and her granddaughter Ms Hurley, attended the Tribunal. The landlord was represented by a client service officer, Mr Daley.
Consistently with the usual practice of the Tribunal, the parties were instructed by the Member to have private settlement negotiations to determine if the dispute could be resolved. The documents and submissions of the parties do not indicate a Tribunal conciliator was present on 16 January 2026, but that is not unusual or unorthodox.
The tenant, Ms Farrow, Ms Hurley and the landlord’s representative returned to the hearing room after a period of discussion, and consent orders were made. The alleged circumstances of the agreement will be addressed later in this decision.
On 17 February 2026, the tenant lodged a Notice of Appeal and application for a Stay of the orders under appeal to the Appeal Panel of the Tribunal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
On 13 March 2026, the Appeal Panel (Lucy PM) granted a consent Stay of the orders for termination and possession, until finalisation of the appeal or other order of the Tribunal, whichever is earlier. The Appeal Panel also made procedural directions for each party to lodge and serve evidence, submissions and a sound recording and transcript of the hearing. Both parties were granted leave for legal representation. The appeal was listed for hearing on 26 May 2026.
On 26 May 2026, the tenant, Ms Farrow and Ms Hurley appeared remotely (by audio-visual link or telephone). Ms Nair, Solicitor, appeared for the respondent.
The appeal hearing on 26 May 2026 was adjourned for reasons that relevantly included the tenant and her family members asserting they had not been able to access the landlord’s appeal documents that had been emailed to them; and had been urgently seeking legal advice and representation.
On the issue of legal advice or representation, Ms Hurley submitted that the tenant had sought advice from Legal Aid NSW, and believed that Legal Aid NSW were going to act for the tenant in the appeal, until informed otherwise. Ms Hurley believed her uncle was then going to obtain private legal representation for the tenant, but there had been confusion and a “family dispute.” No legal representation had been obtained, but on the morning of the hearing Ms Hurley had contacted by telephone a Solicitor who would provide advice if an adjournment was granted. Ms Hurley further asserted that the tenant had additional documents that the tenant sought to rely upon in the appeal.
The Appeal Panel determined it appropriate to grant an adjournment, with reference to the principles discussed in Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7 at [131]-[145]. Procedural directions were made providing a short period for both parties to lodge and serve any additional submissions and documents. The landlord was directed to lodge and serve a copy (or further copy) of its documents and submissions by registered post. The directions also pointed out that any further adjournment application would not be lightly granted, including any adjournment sought on the basis that legal advice had not been obtained.
The appeal was listed for hearing on 23 June 2026. The tenant, Ms Farrow and Ms Hurley appeared by audio-visual link. Ms Nair, Solicitor, appeared for the respondent in person.
As on previous occasions in the appeal proceedings, Ms Farrow and Ms Hurley were granted leave to represent the tenant under s 45 of the NCAT Act, with the tenant also given the opportunity to speak and make submissions if she sought to do so. During the course of the hearing, Ms Farrow and Ms Hurley stated that the tenant was feeling stressed and that they would make submissions on behalf of the tenant.
At the commencement of the hearing, an issue arose regarding service of the respondent’s documents and submissions in the appeal. The respondent relied upon a bundle of 120 pages of documents. Most of those documents were documents that had previously been provided to the tenant or provided in the Tribunal proceedings, such as the residential tenancy agreement; correspondence regarding cancellation of the rent subsidy; the notice to terminate; the orders of the Tribunal under appeal; and the rent ledger. The landlord’s written submissions in opposition to the appeal dated 8 May 2026 were 8 pages in length.
Ms Farrow and Ms Hurley asserted the landlord’s documents and submissions in the appeal had been hand delivered to the residential premises on “Thursday or Friday last week” (i.e. 18 or 19 June 2026) and they had partially read the documents. Ms Nair stated that the documents and submissions had been sent by registered post, but there was no one at the premises on the date of delivery, so the documents and submissions had been taken to a local post office. This information was available to Ms Nair as the “tracking details” of the registered post service. The landlord then arranged for a further copy to be hand delivered at the premises.
The appeal hearing was adjourned for approximately 30 minutes so Ms Farrow and Ms Hurley could further read and consider the documents and submissions, in circumstances where they had at least 3 days between the documents being delivered and the hearing to read and consider the documents and submissions. The Appeal Panel made clear that Ms Farrow and Ms Hurley could seek an adjournment when the hearing recommenced, but if an adjournment application was made, the previous procedural history of the matter was a relevant consideration.
When the appeal hearing recommenced, no adjournment was sought. A further issue was raised by Ms Farrow and Ms Hurley that they had recently been informed by the landlord that the landlord had obtained a warrant for possession which would be executed this week. The matter was adjourned for a short period for Ms Nair to obtain instructions. She informed the Appeal Panel that the landlord had not sought a warrant for possession, and none had been issued. The appeal hearing then recommenced. Each party made submissions. At the conclusion of the hearing, the decision was reserved.
Although the settlement discussions occurred in conciliation room at a Tribunal venue, there was no referral by the Tribunal of a type that would invoke cl. 2 of sch. 1 of the Civil and Administrative Tribunal Regulation 2022 (NSW) such that evidence of what the representative of NSW Housing Corporation allegedly said could not be considered without the consent of that person (Astley v JH Properties Pty Ltd [2017] NSWCATAP 181 at [30]-[33]; Nelson v Auberson [2019] NSWCATAP 241 (Nelson) at [18]-[27]). The tenant’s interpretation of what occurred can be considered, even if it considered only on the basis of her recollection for the purpose of consideration of the grounds of appeal (Nelson at [27]).
When the version of events of Ms Farrow and Ms Hurley is analysed, the representative of the landlord told the tenant and Ms Farrow and Ms Hurley that the landlord was not prepared to agree to a ‘specific performance order’ and payment of arrears by instalments. Rather, the landlord sought a termination order, and was only prepared to concede that the termination order be a ‘pay and stay’ order (i.e. that there was no finding under s 89(5) of the RT Act, and the tenant would have the opportunity to repay the arrears in accordance with ss 89(3) and (4) of the RT Act such that the landlord would not be able to enforce the termination order by obtaining and executing a warrant for possession).
The weight to be given to their recollection of events is reduced by reason that they were not in the form of a statutory declaration or affidavit.
The position of the landlord may have been unpalatable and confronting to the tenant, Ms Farrow and Ms Hurley but it was open to the landlord to take that position, particularly considering the substantial amount of rent arrears (which exceeded $12,000) and the previous order of the Tribunal that the tenant pay arrears by instalments.
There are a significant number of Appeal Panel decisions where the principles applicable to whether consent orders are vitiated such that the making of the orders constitutes appealable error (e.g. McLean v Bridge Housing Limited [2020] NSWCATAP 232; Turk v NSW Land and Housing Corporation [2017] NSWCATAP 207 (Turk); Soueid v St George Community Housing Limited [2023] NSWCATAP 202; Turnbull v Bridge Housing Limited [2021] NSWCATAP 18; Mihalopoulos v NSW Land and Housing Corporation [2026] NSWCATAP 83; Polamarasetty v Denny [2025] NSWCATAP 249; YRF v Karnikowski [2025] NSWCATAP 195; Pineiro v Sultana [2025] NSWCATAP 132; Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99). Most of those decisions refer to McDonald at [59], where the Appeal Panel stated: