Kim v O’Hea

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

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

BP v State of New South Wales [2019] NSWCA 223

Chatterjee v Pandya [2024] NSWCATAP 85

Collins v Urban [2014] NSWCATAP 17

Donohoe v Alburario [2025] NSWSC 9

Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 a

Kramer v Stone [2023] NSWCA 270

Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34

Pholi v Wearne [2014] NSWCATAP 78

Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 5

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139

Solaris v Health Care Complaints Commission [2025] NSWCATAP 290

Taylor v Peslak [2018] NSWCATAP 57

TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

1. This is an appeal by a landlord against a decision of the Consumer and Commercial Division of the Tribunal that a Notice to Terminate dated 16 June 2025 issued under s 87M of the Residential Tenancies Act 2010 (NSW) (RT Act) was retaliatory under s 115 of the RT Act.
2. In this decision, the appellant is referred to as "the landlord" and the respondents as "the tenants."
3. A critical issue in the appeal is whether there is any utility to allowing the appeal. The landlord concedes that the Notice to Terminate issued under s 87M of the RT Act is invalid in any event, as it did not contain the documents required under the RT Act and the Residential Tenancies Regulation 2019 (NSW) (RT Regulation).
4. The landlord presses the appeal on the basis that there are further Tribunal proceedings between the parties. Those proceedings include the tenants seeking to have a further Notice to Terminate issued under s 87M of the RT Act issued by the landlord set aside as retaliatory under s 115 of the RT Act.

1. The parties entered into a written residential tenancy agreement on 10 August 2024.
2. There is a history of disputation and litigation in the Tribunal between the parties.
3. In November 2024, the tenants filed proceedings in the Tribunal seeking orders relevantly including repairs to the premises and compensation.
4. On 10 February 2025, the Tribunal made ex parte orders that the landlord perform specified repairs; and pay the tenants $1,162.50 in compensation due to a failure to keep the premises in a reasonable state of repair.
5. The landlord applied to the Tribunal to have those orders set-aside under Regulation 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022 (NSW).
6. On 14 March 2025, the Tribunal set-aside the orders of 10 February 2025, and the tenants' proceedings were relisted before the Tribunal.
7. On 3 June 2025, the Tribunal made consent orders and notations. The rent was not to exceed $790 pw until the end of the lease. The landlord was to pay the tenants $800 in compensation. The landlords were to perform a repair to the toilet and provide a key to the tenants in respect of the dining room flyscreen door. It was noted that the orders were "full and final settlement of all matters arising from this claim."
8. On 16 June 2025, the landlord issued the tenants with a Notice to Terminate under s 87M of the RT Act on the basis that the tenant's family were moving into the property. The date of vacant possession identified in the Notice was 17 September 2025.
9. Section 87M of the RT Act states:

87M Landlord or family will reside at the premises

(1) A landlord may give a termination notice on the ground that a relevant person will reside at the residential premises for at least 6 months.

(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

(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 the relevant person genuinely intended to reside at the premises but could not do so because of circumstances beyond the control of the relevant person.

(5) Subsection (3) does not apply to a residential tenancy agreement if the tenant under the agreement is -

(a) a relevant person, or

(b) a person who will reside at the residential premises with a relevant person.

(6) In this section -

relevant person means the following -

(a) a landlord,

(b) a spouse or de facto partner of a landlord,

(c) a parent, grandparent, child, grandchild, sibling, child of a sibling, sibling of a parent or first cousin of -

(i) a landlord, or

(ii) a spouse or de facto partner of a landlord,

(d) a dependent of a landlord who ordinarily resides with the landlord.

1. Under s 85(1) of the RT Act, the RT Regulation may require a landlord to provide supporting documents or information when given a termination notice.
2. Under Regulation 23A(1) of the RT Regulation, a landlord must give a tenant "an information statement that includes" certain information. In respect of a termination notice under s 87M of the RT Act, Regulation 23I of the RT Regulation states:

23I Termination notices if landlord or family will reside at premises

(1) For the Act, section 85(1), a landlord must, when giving a termination notice under the Act, section 87M, give the tenant -

(a) a written statement from the landlord, and

(b) if the notice is given on the ground that a relevant person who is not the landlord will reside at the premises - a written statement from the relevant person.

(2) However, if notice is given on the ground that more than one relevant person who is not the landlord will reside at the premises, a written statement under subclause (1)(b) is only required from one of the relevant persons.

(3) The landlord's written statement under subclause (1)(a) must -

(a) be signed and dated by the landlord, and

(b) state the following -

(i) if the notice is given on the ground that the landlord will reside at the premises - that the landlord will reside at the premises for at least 6 months,

(ii) if the notice is given on the ground that a relevant person who is not the landlord will reside at the premises -

(A) that the relevant person will reside at the premises for at least 6 months, and

(B) the relationship between the relevant person and the landlord.

(4) The relevant person's written statement under subclause (1)(b) must -

(a) be signed and dated by the person, and

(b) state the following -

(i) that the relevant person will reside at the premises for at least 6 months,

(ii) the relationship between the relevant person and the landlord.

(5) In this clause -

relevant person has the same meaning as in the Act, section 87M.

1. The Notice of Termination dated 16 June 2025 did not contain the information required under Reg 23I.
2. On 1 July 2025, the tenants filed Tribunal proceedings. The tenants sought orders for repair involving the oven and cooktop. There was reference to a single flush toilet not meeting water efficiency standards. The tenants also sought that the Notice to Terminate dated 16 June 2025 be declared as having no effect on the basis that it was retaliatory.
3. Section 115 of the RT Act states:

115 Retaliatory evictions

(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice -

(a) declare that a termination notice has no effect, or

(b) refuse to make a termination order,

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons -

(a) the tenant had applied or proposed to apply to the Tribunal for an order,

(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act, or any other law,

(c) an order of the Tribunal was in force in relation to the landlord and tenant.

(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

1. The tenant's proceedings were listed for hearing before the Tribunal on 27 August 2025. The landlord's agent appeared on behalf of the landlord and the tenants appeared. The Tribunal made orders and gave oral reasons.
2. The appeal documents of the landlord contain a transcript of the hearing on 27 June 2025, including the oral reasons of the Member.
3. The Member's reasons refer to the notice to terminate not having the requisite supporting documents under Regulation 23I of the RT Regulation.
4. No reference was made at the hearing as to whether the landlord withdrew reliance on the Notice to Terminate dated 16 June 2025. The Tribunal did not ask the landlord's agent whether the Notice to Termination was revoked (ss 112 and 118 of the RT Act) and would not be relied upon. The landlord's agent did not state to the Tribunal that the Notice to Terminate dated 16 June 2025 was revoked as it was invalid.
5. In any event, the Member determined that it was appropriate to consider and determine the tenants' application under s 115 of the RT Act. The Member found that it was not a "genuine notice" because it has been issued by the landlord soon after the previous Tribunal proceedings had concluded, and there was some evidence that the reason the landlord sought to terminate was due to the cost of repairing the premises.
6. The Tribunal made the following orders on 27 August 2025:

(1) The landlord pay the tenant $850 by way of a credit to the rent ledger. There was an "agreed amount" of compensation of $790 for the period to 18 August 2025 when the tenants did not have use of the stovetop; and $60 for reimbursement of water usage charges for a period during the tenancy.

(2) The Notice of Termination dated 16 June 2025 as declared retaliatory under s 115 of the RT Act and had no effect.

1. The landlord does not appeal the money order to pay $850. The only order appealed against was the order to declare the Notice of Termination dated 16 June 2025 retaliatory under s 115 of the RT Act.
2. The landlord argues in the appeal that the Tribunal applied the wrong legal test in respect of s 115 of the RT Act, and in effect, reversed the onus so that the landlord had to prove the notice was genuine rather than the tenants prove it was retaliatory under s 115 of the RT Act.
3. Further, the landlord argues the Tribunal wrongfully rejected at the hearing evidence of the landlord. That evidence involved a written statement of the landlord dated 16 June 2025 that had not been filed and served prior to the hearing. The landlord also sought to tender documents verifying the travel of her parents to Australia, which were received on 26 August 2025.
4. The landlord argues that there was a denial of procedural fairness in rejecting her documentary evidence and because the landlord was not given the opportunity to give oral evidence explaining why she sought to take back possession of the premises. The position of the landlord was that her elderly parents were travelling to Australia in July 2025 for a number of months to celebrate their birthdays and needed to reside at the premises with the landlord, as the landlord could not accommodate them in the one-bedroom unit she currently resides in. The landlord complains that the tenants were able to give "statements and assertions" on the day of the hearing, but critical evidence of the landlord was not allowed.
5. Subsequent to the Notice to Terminate dated 16 June 2025, the landlord has issued a fresh Notice to Terminate under s 87M of the RT Act.
6. The tenants have filed fresh Tribunal proceedings seeking to have that termination notice declared invalid. Those proceedings remain before the Tribunal. As of the date of the appeal hearing, they had not been determined.

1. The landlord filed and served a Notice to Appeal on 12 September 2025. An appellant in a residential tenancy appeal has 14 days from the date of the decision or the date the decision is received (whichever is the later) to lodge an internal appeal (Reg. 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). That period of time can be extended under s 41 of the NCAT Act (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22])
2. The tenants filed and served a Reply to Appeal on 7 October 2025.
3. The landlord filed and served documents and submissions in support of the appeal on 24 October 2025.
4. The tenants filed and served documents and submissions in opposition to the appeal on 4 November 2025.
5. At the appeal hearing, the agent of the landlord represented the landlord; and the tenants appeared self-represented.

1. 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.
2. 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].
3. 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 (if established) is an appeal made as of right and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:

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] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

1. 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.
2. However, an error on a question of law may arise in the circumstances including the following:

(1) 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)).

(2) 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)

(3) 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; at - and [413]; at and [9]).

1. 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) 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).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where:

... 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.

1. 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]; Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. 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.

1. Under s 80(1) of the NCAT Act, an appeal to the Appeal Panel is from an "internally appealable decision". Internally appealable decision is defined in s 32 of the NCAT Act; and "decision" is defined in s 4 of the NCAT Act.
2. An appeal is against orders that arise from decisions, not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259].
3. In BP v State of New South Wales [2019] NSWCA 223, Meagher JA, Payne JA, and McCallum JA stated as follows (at [11]-[12]):

In relation to the appellant's principal point, that he wishes to challenge the "finding" of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

"... it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against "judgments, decrees, orders and sentences", not against reasons. The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment."

The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

"[10] It is well established that a "judgment or order" in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour's observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge's reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment."

1. If this appeal succeeded, there would be no utility in remitting the matter back to the Tribunal for determination under s 81(1)(e) of the NCAT Act. The Notice to Terminate dated 16 June 2025 is clearly invalid and cannot be the basis of a termination order by the Tribunal under the RT Act. The landlord has issued a fresh Notice to Terminate under s 87M of the RT Act which the tenants have challenged in fresh Tribunal proceedings. Remitting these proceedings back to the Tribunal is futile.
2. In Solaris v Health Care Complaints Commission [2025] NSWCATAP 290 (Solaris) the Appeal Panel at [17]-[25] discussed the principles applicable to an appeal that has no utility. At paragraphs [19]- [20], the Appeal Panel stated:

In Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180, at [49]−[60], the appeal panel provided the following recent summary of the relevant principles concerning the approach to be taken where the utility of an appeal has come into question. We respectfully adopt that summary as follows:

"46 A proceeding, or an aspect of it, will lack utility if its determination serves no practical purpose. One way a proceeding or issue can become moot is if, due to supervening events or circumstances, there is no longer a controversy between the parties: Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 (Hunter Development) at [40].

47 As a matter of general principle, courts will ordinarily refuse to determine issues which no longer have utility or have become moot. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47], the High Court explained:

'Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.'

49 Courts have the power to dismiss or stay proceedings which involve issues that are not live between the parties, so as to protect the court's processes from being abused. This includes the power to dismiss an appeal which was brought as of right, if later events show that the questions involved in it have become moot between the parties': Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [30]-[31].

50 The Tribunal likewise has the power to summarily dispose of issues which have no utility. Section 36(1) the NCAT Act provides that the guiding principle for proceedings under the Act is to 'facilitate ... the real issues in the proceedings'. This imperative applies to 'the resolution of the issues between the parties': NCAT Act, s 36(4). The Tribunal has procedural powers under ss 36 and 38 to ensure that proceedings meet the guiding principle: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [160]- [162].

51 While the general rule is that proceedings which have become moot should not be entertained, there is a line of authority which suggest that courts nevertheless have a discretion to determine matters which have been regularly commenced; notwithstanding that there is no longer a live substantive issue between the parties: People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD); Jardin; Hunter Development; Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; ()

(1) Where there is a live issue of costs between the parties and resolution of the issue depends on determining the appeal on its merits: Hunter Development at [27]-[38], [46], [56]; Jardin at [32].

(2) Where the appeal raises an important question of principle which will have ramifications for other cases: PWD at [13]-[15]; Jardin at [32]; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 at [118]- [119].

(3) Where appeals have been brought in the public interest and there is 'an issue of construction having significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment': Industrial Equity at [16].

53 In Jardin, Campbell JA noted that the discretion should be exercised sparingly, stating (at [35]):

'It could only be in rare circumstances, if ever, that a court was justified in reaching a decision on [a] legal question that had no practical consequences for either of the parties: Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69.'

54 The foregoing provides some basis to suggest that the Tribunal, too, has a narrow discretion to determine a matter, which was regularly commenced, but where there is no longer a live substantive issue between the parties. The question of costs might provide such justification, although, it is not always necessary or appropriate to finally determine the merits of a matter in order to determine costs: Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 (McHugh J).

55 The discretion of the Appeal Panel to consider a moot appeal was discussed by the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [7]- [25]. It was there noted that the question of costs and whether an error of principle is raised might provide the basis to exercise the discretion. Nevertheless, the Appeal Panel declined to entertain the moot appeal in that case. It dismissed the appeal under s 55(1)(b) of the NCAT Act, as misconceived or lacking in substance.

...

60 We accept, as a general proposition, that where a matter has been regularly commenced, but subsequent events mean that there is no longer a live issue as between the parties, the Tribunal may have authority to determine the matter. The real question is what orders the Tribunal would have power to make; and why."

The appeal panel in Song v Dickenson No 2 [2025] NSWCATAP 208, after considering the general principles concerning the phrase "substantial miscarriage of justice" when considering whether to grant leave to appeal, further considered the question of utility at [41]:

... If an appeal raises a question of law, the appeal should, if upheld, be capable of affecting the orders at first instance in a meaningful way: Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 at [34(8)]. However, an appeal will lack utility if its determination serves no practical purpose: The Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 (Parish) at [47]; Secretary, Department of Communities and Justice v Feeney [ 2021] NSWCATAP 139 at [26]. Similarly, if leave to appeal is required, there must be utility in granting leave: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86].

1. The Appeal Panel has the power to dismiss an appeal that is moot (i.e. has no utility) under s 55(1)(b) of the NCAT Act: Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [8]; Solaris at [25] and [53]-[54].
2. Section 55(1)(b) of the NCAT Act states as follows:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -

...

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

...

1. No important legal principle requiring clarification is raised in the appeal. The principles pertaining to procedural fairness and the admission of evidence are well established. A discussion of those principles, and a theoretical consideration of whether or not the landlord was denied procedural fairness, is not sufficient to give the appeal utility.
2. The Tribunal made no costs orders in its decision of 27 August 2025, and this appeal can have no bearing on any extant costs orders.
3. The principles regarding whether or not a Notice to Terminate is retaliatory under s 115 of the RT Act are well established. If a Notice is retaliatory the Tribunal retains a discretion whether to declare it as having no effect: Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109; Chatterjee v Pandya [2024] NSWCATAP 85 (Chatterjee).
4. In Chatterjee, the Appeal Panel stated at [50]-[51]:

The legal principles applicable to s 115 of the RT Act were discussed in detail by the Appeal Panel in Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109.

Those principles are summarised as follows:

(1) The tenant has the onus of providing sufficient evidence for the Tribunal to be satisfied that the Notice is retaliatory because the landlord was "wholly or partially motivated" by one or more of the grounds set out in s 115 (2)(a)-(c) of the RT Act.

(2) If the Notice is retaliatory, the Tribunal has a discretion whether or not to declare the Notice as retaliatory and having no effect; or to refuse to terminate the tenancy. The Appeal Panel stated in Hughes at [120]-[121]:

"As the Appeal Panel identified in Steinbeck, although the discretion is broad, the matters to be taken into account should appropriately focus upon the competing rights and interests of the landlord and tenant under the RT Act and the residential tenancy agreement. The Tribunal must then identify and weigh the matters taken into account and explain why it is satisfied that the discretion should, or should not, be exercised in favour of declaring the termination notice as having no effect, or refusing to make the termination order.

Such matters may include, depending on the circumstances of the case:

(1) The reasons the landlord seeks possession of the premises.

(2) If the landlord was only partially motivated to issue the Notice or file the termination application by reason of one or more of the matters in s 115 (2) (a)-(c), the degree to which those matters motivated the landlord in comparison to other matters that fall outside of s 115 (2) (a)-(c).

(3) If the landlord is a social housing provider, the waiting list for social housing.

(4) Whether there is substantial hardship to either the landlord or the tenant if the tenancy is not terminated despite the fact that the landlord was wholly or partially motivated to issue the Notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act.

(5) Whether the relationship between the parties has broken down to such a degree that it is in the overall interests of the parties to terminate the tenancy so that both parties may move forward. In this regard, a relevant enquiry is why the relationship has broken down and whether the parties have been involved in a cycle of disputation and litigation that is likely to continue if the tenancy is not terminated. However, any such enquiry must be careful not to unfairly benefit a party who has not complied with its obligations under the RT Act and should consider the conduct of both parties."

1. The proceedings have not been brought in the public interest, nor do they involve a matter of important statutory construction.
2. The only utility in the Appeal Panel determining the appeal that the landlord identified was the potential effect on the fresh Notice to Terminate issued by the landlord. As discussed previously, the tenants have brought proceedings in the Tribunal arguing that the fresh Notice is retaliatory under s 115 of the RT Act. The landlord is concerned that the finding of the Tribunal that the Notice dated 16 June 2025 was retaliatory and was declared as having no effect will influence the tenants' application under s 115 of the RT Act in respect of the fresh Notice to Terminate under s 87M of the RT Act.
3. That concern is insufficient to establish that there is any practical purpose to the appeal.
4. The findings in respect of the Notice to Terminate dated 16 June 2025 cannot form the basis of an issue estoppel in respect of the fresh Notice to Terminate, because it is not the "same question" that will be decided in the Tribunal proceedings commenced after 27 August 2025 (Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21]).
5. The Notice to Terminate dated 16 June 2025 was invalid (in the sense that it was non-compliant with the RT Act and RT Regulation and could not form the basis of a Tribunal termination order) in any event, irrespective of whether it was "retaliatory" under s 115 of the RT Act.
6. Whether the fresh Notice to Terminate issued under s 87M of the RT Act is retaliatory under s 115 of the RT Act, and if so, whether it should be declared as having no effect, must be considered in the context of the relevant evidence pertaining to the issue of the fresh Notice, and applying the principles set out in Chatterjee. That is a matter for the Tribunal to consider in the proceedings that are before the Tribunal that arise from the issue of the fresh Notice to Terminate under s 87M of the RT Act.

(1) No extension of time to lodge the appeal is granted under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.