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Medium Neutral Citation: Kenelley v Wakool Services Club Ltd [2026] NSWSC 1221

Hearing dates: 25 September 2026

Date of orders: 25 September 2026

Decision date: 25 September 2026

Jurisdiction: Common Law

Before: Emmett J

Decision: (1) Refuse the interlocutory relief sought by the plaintiff.

Catchwords: JUDGMENTS AND ORDERS — Stay of execution — where plaintiff seeks stay of execution of NCAT orders for termination of tenancy and vacant possession by lessor — where plaintiff has commenced appeal in Tribunal — whether arguable grounds of appeal shown — whether balance of convenience favours stay — where plaintiff has not offered undertaking as to damages — where plaintiff has had substantial notice of termination of tenancy — where lessor subject to significant financial pressures

Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Registered Clubs Act 1976 (NSW), s 41E
Residential Tenancies Act 2010 (NSW), ss 55, 81, 82, 83, 87E, 89A, 114
Residential Tenancies Regulation 2019 (NSW), cl 23C

Category: Procedural rulings

Parties: Janet Kenelley (Plaintiff) (Self-represented)
Wakool Services Club Ltd (First Defendant)
The Trustee for the Golden Rivers Real Estate t/a Ray White Real Estate Barham (Second Defendant)
NSW Civil and Administrative Tribunal (Third Defendant) (No Appearance)

Representation: Counsel:
J Glowrey (First and Second Defendants)
Solicitors:
Glowreys the Riverina Law Firm (First and Second Defendants)

File Number(s): 2026/00344300

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. The plaintiff seeks a stay of execution, or equivalent injunctive relief, in relation to an order by the New South Wales Civil and Administrative Tribunal (‘the Tribunal’) in the Consumer and Commercial Decision under s 114(2) of the Residential Tenancies Act 2010 (NSW).

2. The order was made 10 July 2026 but suspended until 4 September 2026.

3. The plaintiff has commenced an appeal in the Tribunal, but the hearing of the appeal has been set down for late October 2026. On 26 August 2026, Principal Member Blake in the Tribunal declined to grant a stay of the Tribunal’s order on 10 July 2026.

Chronology, so far as it concerns the termination and the Club’s consequential right to vacant possession

4. The first defendant is a registered Club. The second defendant is its real estate agent.

5. The plaintiff since 2022 has been a tenant in property owned by the Club. She was originally a tenant on a 12-month lease. The lease has been periodic since the expiry of its original term.

6. The plaintiff says she was in dispute with the agent about matters including repair and maintenance, since the beginning of 2025.

7. From at least July 2025, the Club board was considering the sale of the premises to realise funds.

8. On 24 July 2026, the Club received advice from its solicitor that sale of the property would require consideration of s 41E of the Registered Clubs Act 1976 (NSW) to which I will return.

9. On the evidence before this Court, on 25 September 2025, at the annual general meeting of the Club, a motion was put to members and the members voted unanimously in favour of it, in the following terms:

For the purposes of section 41E of the Registered Clubs Act NSW the Club declares that the land and improvements comprising 4 Tasman Street, Wakool being Certificate of Title Identifier 1/3/759033 is “Non Core Property.”

10. On 12 December 2025, the Club’s agent ie, the second defendant, served a termination notice on the plaintiff. It included a landlord termination confirmation document electronically signed by two people who were at the time, on the evidence before me, directors of the Club.

11. Under the Residential Tenancies Act, the Club was obliged to give 90 days’ notice in its termination letter. The Club gave 120 days’ notice in the termination notice.

12. This came some weeks after the plaintiff had given a notice of a complaint sought to be brought under the Anti*-Discrimination A**ct* 1977 (NSW) against the second defendant ie, the agent. The notice of complaint was given, on the material before me, on 17 November 2025.

13. The complaints were about the agent’s conduct. The plaintiff summarised some of those complaints before me. They related to disputes about maintenance, a statement by the agent that they would start inspecting the property quarterly as contemplated by the terms of the lease and permitted by s 55 of the Residential Tenancies Act, and disputes about the rent.

14. Then, as I say, a termination notice was served 12 December 2025.

15. On 18 December 2025, the plaintiff gave notice of two further complaints, one about the second defendant and one about the first defendant, both in relation to the termination notice.

16. Those complaints were the subject of parallel proceedings in the Tribunal in its Administrative and Equal Opportunity Division.

17. On 2 March 2026, Principal Member Ransome dismissed an application for interim orders in relation to those complaints. On 15 July 2026, Principal Member Lucy declined to grant leave for the applicant’s complaint against each respondent to proceed under s 91 of the Anti-Discrimination Act.

18. In relation to the Club’s alleged victimisation by retaliatory conduct through serving a termination notice after the November complaint had been notified, Principal Member Ransome observed that there was no evidence that the anti‑discrimination complaint was a substantial operating factor in the Club's decision to terminate the lease given the history of deliberations prior to November 2025.

19. At [31], the Principal Member said, “I am not persuaded that there is a sufficient likelihood of success re victimisation to justify preservation of status quo”. At [30], Principal Member Ransome had said that there was “almost no basis” for inferring that the termination notice was issued because of the discrimination complaint. I would go further.

20. On the chronology as it appears before this Court, the sale of the property was in contemplation in July 2025, and significant steps were taken in September 2025, as well as being the subject of board consideration in October 2025. The material before the Court discloses no reasonably arguable basis that issuing the termination notice was retaliatory to the notice of complaint made in November 2025.

1. The Tribunal makes an order terminating the residential tenancy agreement under s 89A of the Residential Tenancies Act 2010 immediately where the Tribunal is satisfied the termination notice was given validly, the ground in the termination notice is genuine and the tenant has not vacated the premises as required by the notice.

Types of termination notice given: Proposed sale of premises.

2. The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 4 September 2026.

3. The tenant is to pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, 11 July 2026, until the date vacant possession is given.

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

25. The plaintiff lodged an appeal against the decision of 10 July 2026 on 24 July 2026. She sought a stay of the Tribunal's order, and that stay was heard and refused by Principal Member Blake on 26 August 2026. Principal Member Blake gave two reasons:

26. no arguable grounds had been demonstrated to raise serious issues for determination; and

27. even if there were arguable grounds, balance of convenience did not favour a stay.

28. It is important to observe that Principal Member Blake’s conclusion as to the balance of convenience was independent of Principal Member Blake’s view as to the plaintiff’s grounds of appeal. In other words, the conclusion was that, regardless of whether arguable grounds of appeal had been raised, the balance of convenience favoured refusing the relief.

29. The decision by Principal Member Blake was four weeks ago today. I was informed, and nothing was said to the contrary, that the eviction notice was served on the plaintiff on 8 September 2026, and the Sheriff is expected to attend on 28 September 2026, ie, this coming Monday.

30. The plaintiff did not approach the duty list for urgent relief until yesterday, although I recognise that the plaintiff foreshadowed that she may seek a stay in earlier documents.

31. It is appropriate to note relevant provisions of the Residential Tenancies Act:

81 Circumstances of termination of residential tenancies

(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act.

(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

(3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.

(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs—

(a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,

(b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,

(c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant,

(d) the tenant abandons the residential premises,

(e) the tenant gives up possession of the residential premises with the landlord’s consent, whether or not that consent is subsequently withdrawn,

(f) the interests of the landlord and tenant become vested in the one person (merger),

(g) disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord).

82 Termination notices

(1) A termination notice must set out the following matters—

(a) the residential premises concerned,

(b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,

(c) the ground for the notice, unless the notice is given under section 96 or 97,

(d) any other matters prescribed by the regulations.

(2) A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.

(3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.

83 Termination orders

(1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.

(2) An application to the Tribunal by a landlord for a termination order—

(a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and

(b) must be made only if vacant possession of the premises is not given as required by the notice.

…

87E Proposed sale of premises

(1) A landlord may give a termination notice on the ground—

(a) the residential premises will be offered for sale, and

(b) the contract for sale will give vacant possession of the premises.

(2) The termination date must be—

(a) for a periodic agreement—at least 90 days after the notice is given, or

(b) for a short fixed term agreement—

(i) on or after the end of the agreement, and

(ii) at least 60 days after the notice is given, or

(c) for another fixed term agreement—

(i) on or after the end of the agreement, and

(ii) at least 90 days after the notice is given.

(3) The landlord requires the approval of the Secretary to enter into a residential tenancy agreement under this Act for the residential premises within 6 months after the termination date.

(4) The Secretary must give approval if satisfied—

(a) the landlord made reasonable efforts to sell the premises, and

(b) the premises were not sold because—

(i) no acceptable offer was made, or

(ii) the landlord was otherwise unable to sell the premises, or

(iii) the landlord experienced exceptional changes to life circumstances that made the plan to sell the premises untenable.

(5) Subsection (3) ceases to apply if the residential premises are sold.

…

89A Premises not vacated after termination notice

(1) A landlord may apply to the Tribunal for a termination order if—

(a) the landlord has given a termination notice to a tenant under Subdivision 1, and

(b) the tenant has not vacated the premises as required by the notice.

(2) The Tribunal must make the termination order if satisfied—

(a) the termination notice was given in accordance with this part, and

(b) the ground on which the notice was given is genuine, and

(c) the tenant has not vacated the premises as required by the notice.

30. I emphasise that, pursuant to s 89A, if the Tribunal is satisfied of the matters in subs (2), including that the ground was genuine, the Tribunal must make the order contemplated by that provision.

Reasons of the Tribunal refusing a stay

31. The Court does not have the reasons for the Tribunal’s decision on 10 July 2026. The parties told me that they were not presently available. However, deciding whether to grant a stay pending appeal is, in the first instance, a matter for the Tribunal in its own appellate jurisdiction. I recognise that is subject to this Court's appellate and supervisory jurisdiction. This Court’s focus should be Principal Member Blake’s decision on 26 August 2026. As I have indicated above, Principal Member Blake identified two independent grounds for refusing the stay.

Plaintiff’s contentions

32. The plaintiff advanced a number of contentions in this Court for why she had an arguable case for challenging one or more of the decisions below.

Plaintiff’s first contention: the proposed contract of sale

33. The first was that she said that the proposed contract of sale that was attached to the termination notice is not for the rental property. The contract of sale was attached to the termination notice because cl 23C of the Residential Tenancies Regulation 2019 (NSW) requires that. This Court has the termination notice together with the contract. The contract is, on its face, a contract for the rental property about which the plaintiff makes a claim.

34. The plaintiff’s complaint is based in part on an assertion that the register does not name the first defendant Club as the registered proprietor. The evidence before the Court (including an ASIC search) establishes that the name in which it is registered is a previous name of the Club. This matter is also addressed in special conditions for the contract.

35. The plaintiff also says that the Club has not taken steps to sell the property, and makes contentions about problems with encroachments, an asserted need to rezone and alleged necessary maintenance. She says that part of the property is adjoined to the Club premises ie, separate property that is not proposed to be sold. The plaintiff says that a sale would inevitably have the property sold well below value.

36. I would observe first that the material before me does not enable me to reach that conclusion even on an arguable basis. Second, s 87E of the Residential Tenancies Act requires that the ground for termination is that the property will be sold, but there is no reason to read into s 87E any exclusion of the possibility that there may be steps that might properly be taken after vacant possession has been obtained prior to sale, including, for example, matters of maintenance and attending to matters of encroachment. In any event, this was a matter that was ventilated in the Tribunal.

Plaintiff’s second contention: the November 2025 complaint

37. The next ground on which the plaintiff relies is an assertion that the termination notice was retaliation for the November 2025 complaint. I have already addressed that. The evidence does not disclose an arguable case, when regard is had to the full chronology, that the termination notice was retaliatory on the notice of complaint given in November.

38. I stress that this is an urgent matter in the duty list. While I recognise that the decision of this Court may have real significance between the parties, I emphasise that this Court is not deciding any of the allegations under the Anti*-*Discrimination Act.

Plaintiff’s third contention: s 41E of the Registered Clubs Act

39. The plaintiff says that sale of the property would be contrary to s 41E of the Registered Clubs Act.

41E Disposal of real property by registered clubs

(1) A registered club must not dispose of any core property of the club unless—

(a) the property has been valued by a qualified valuer, and

(b) the disposal has been approved at a general meeting of the ordinary members of the club at which a majority of the votes cast supported the approval, and

(c) any sale is by way of public auction or open tender conducted by an independent real estate agent or auctioneer.

(2) If core property is disposed of by a registered club in contravention of subsection (1), the Secretary may make an application to the Supreme Court for an order in relation to the disposition of the property.

(3) In determining an application under subsection (2), the Supreme Court may make such of the following orders as it thinks fit if it is of the opinion that the disposal of the core property has not been generally to the benefit of the members of the registered club—

(a) an order declaring a contract for the disposal of the property void,

(b) where the property had been owned by the club when it was disposed of, an order directing that the property be transferred back to the registered club,

(c) an order directing the payment of an amount or a further amount in relation to the disposal of the property by the person to whom the club disposed of the property or any person who benefited from the disposal of the property,

(d) such other orders as the Supreme Court considers necessary or appropriate in the circumstances.

(4) The Supreme Court may not make an order under subsection (3) that, in the opinion of the Supreme Court—

(a) would unfairly and materially prejudice an interest or right of a person who acted in good faith and with no reasonable grounds to suspect that the disposal of the property concerned was in contravention of this Act, or

(b) would result in the extinguishment of an interest in the property (without proper compensation) held by a person who had no knowledge that the property had been disposed of in contravention of this Act or no means of preventing the disposal of the property.

(5) The annual report of a registered club must specify the core property and non-core property of the club as at the end of the financial year to which the report relates.

(6) In this section—

core property of a registered club means any real property owned or occupied by the club that comprises—

(a) the premises of the club, or

(b) any facility provided by the club for the use of its members and their guests, or

(c) any other property declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, to be core property of the club,

but does not include any property referred to in paragraphs (a)–(c) that is declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, not to be core property of the club.

dispose of property means to sell, lease or licence the property or to otherwise deal with the property in such manner as may be prescribed by the regulations.

non-core property of a registered club means any real property owned or occupied by the club that is not core property.

qualified valuer means a person who—

(a) has membership of the Australian Valuers Institute (other than associate or student membership), or

(b) has membership of the Australian Property Institute (other than student or provisional membership) acquired in connection with his or her occupation as a valuer, or

(c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or

(d) is of a class of persons prescribed by the regulations.

40. The plaintiff contends that the property is core property and is therefore subject to the requirements of subs (1).

41. The Court has before it, as I have indicated, the minutes of the meeting of the Club, held on 25 September 2025, in which the members voted unanimously in favour of the motion to declare the property non-core property.

42. The plaintiff says she believes that these are not genuine minutes. No objective evidence has been placed before the Court or articulated before me supporting that belief or assertion. The plaintiff says she did not attend that meeting, nor is she a member of the Club. I am not persuaded that there is any objective basis for the assertion that the minutes of 25 September 2025 are not a genuine document.

Plaintiff’s fourth contention: the Club’s intention to sell the property

43. The plaintiff says that the Club was only considering whether or not to sell the property, such that s 87E was not engaged. I do not accept that. On the evidence before me, the Club has made a decision to sell. The evidence does not suggest that the Club is considering whether or not to sell the property. The Tribunal below clearly accepted that to be the case.

44. The decision to sell has consequences for the Club, including under s 87E: subs (3) and (4). Mr Glowrey, who appeared for the defendants before me, confirmed to this Court that the Club has made a decision to sell the property.

Plaintiff’s fifth contention: authority to issue the termination notice

45. The plaintiff sought to challenge the second defendant's authority to issue the termination notice. She referred to an email exchange, which was not before the Court, in which she sought to challenge questions of authority, and she says that she did not receive a substantive response. While I do not have that email in evidence, I do not think I need it. Nothing in what the plaintiff said suggests to me a basis for doubting the agent's authority to issue the termination notice.

46. I have, among other things, the agency agreement, which confers that authority on the agent, and, as I have indicated, the landlord termination confirmation document signed by two named people. The plaintiff accepts that those persons are currently directors of the first defendant but does not accept that they were directors in December 2025.

47. I am satisfied, on the evidence before me, that they were directors in 2025, noting that they are recorded as directors serving triennial terms in the annual general meeting held on 25 September 2025, and are recorded as attending the board of directors meeting on 8 October 2025 that was also placed before me.

48. I would observe that one of those two persons is recorded with a different surname, but the plaintiff has confirmed to me that it is, to her understanding, the same person. I am accordingly satisfied, on the material before me, that nothing in the evidence provides a basis for an arguable case that the termination notice was issued without authority.

Plaintiff’s sixth contention: suggested promise of permanence

49. The plaintiff referred to a promise that she said a past Club president had made that she could live in the premises permanently, and that the Club would not sell the property. I have no direct evidence about this matter. There is no evidence of this being ventilated before Principal Member Blake. In any event, there is no reason to think that any such promise by an individual could be one within authority.

50. It is difficult to reconcile this assertion with what the plaintiff said to me, that is she said, "I always had, in the back of my mind, that there was no guarantee in life."

51. On the basis of those matters, I am not persuaded that there is an arguable case for challenging any decision below, based on the assertion of a promised permanency.

Plaintiff’s seventh contention: non-production of documents in the Tribunal

52. Finally, the plaintiff relied on a refusal to produce documents in response to a summons issued by the Tribunal. On the evidence before me, documents were produced on 8 July 2026 and there was a hearing on 10 July 2026. The plaintiff's complaints about those documents appear to be that she did not get documents that enabled her to explore further her contention that meeting minutes and other documents were false.

53. Since the plaintiff has disclosed no objective basis for asserting that the documents were false, it is by no means clear to me that she had a legitimate forensic purpose for seeking any such documents. In any event, I am not satisfied that this would provide a ground for either appellate intervention or judicial review relief in relation to Principal Member Blake's decision.

Conclusion on arguable case

54. On the material before the Court, none of these assertions discloses an arguable case for judicial review relief or a ground of appeal if leave were granted. Even if there were an arguable case, this Court would need to consider whether the balance of convenience favours granting the interlocutory relief sought.

Balance of convenience

55. Mr Glowrey, for the defendants, informed the Court that there is a current warrant from the Tribunal which was issued, I infer, on 4 or 5 September 2026, and which expires on or around 6 October 2026. It is doubtful whether the Sheriff will be able to attend on another day before then if a short stay is granted preventing the Sheriff from attending the property on 28 September 2026. It is also not clear to me what, if anything, would change on the plaintiff's case between now and next week. The plaintiff's application for a stay must necessarily be for a longer period than that.

56. If the defendant needs to obtain a fresh warrant or an extension from the Tribunal, that will be a cost to the first defendant. Mr Glowrey estimated that cost to be around $450. While I recognise that is not a large sum of money, the plaintiff said she was unable to pay that, and it is clear she is not willing to do so.

57. While I accept that that alone does not necessarily loom large in the balance of convenience, it highlights a more significant matter. The plaintiff has not offered the usual undertaking as to damages, but even if I were to impose it as a condition of relief, there is no reason to think that she would be able to pay anything pursuant to it.

58. I place full weight on the prejudice to the plaintiff if the Sheriff proceeds, as currently proposed on 28 September 2026, and the plaintiff is later successful in any judicial review proceedings. But as I say, I need to set that against the fact that no arguable ground has been disclosed before me, and the fact that the plaintiff has had substantial notice of the termination of the tenancy, and the intention to obtain vacant possession.

59. This is a case where material prejudice would be suffered by either side if they do not succeed today.

60. The plaintiff seeks to place weight on an announcement by the Club, following its annual general meeting on 2 September 2026, that the Club holds "current assets sufficient to carry through approximately 12 months of operation". I do not accept that this means that I can infer from this that the Club can afford what may be a delay of some months.

61. First, the announcement says that this was the position as at June 2026. That is already some months in the past. Second, the Court has the minutes of that annual general meeting. It records a number of matters:

62. the loss for the last financial year was $37,000;

63. the revenue is not going up, but costs are going up; and

64. the balance sheet was $142,000 three years ago, but the Club has been losing $27,000 per year since then.

65. Consistent with that, the announcement on which the plaintiff relies, far from being apt to give members comfort as to a strong financial position, stresses that the Club needs the help of membership to continue operating. I also take into account that the plaintiff says that the Club will need to incur significant costs in order to prepare the property for sale.

The [C]lub has constantly battled financially due to a decline in patronage and challenging local economic conditions.

The Clubhouse building has been maintained to a very basic standard and is in need of some serious capital expenditure, starting with the roof that constantly leaks.

Back in 2017, the [C]lub sold gaming machines which netted $150,000 and these funds have been depleted.

The [C]lub cannot borrow from the bank.

64. Finally, on the balance of convenience, on the Club's side, I take into account that the notice of termination was served on 12 December 2025. It allowed 120 days to vacate. It is now over nine months after the notice of termination was served. When I take all of the material into account, I am satisfied that the balance of convenience favours refusing the relief sought.

65. Accordingly, the order of this Court is:

66. Refuse the interlocutory relief sought by the plaintiff before the Court today.

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