Kimpton v Wu

1. The tenancy agreement between the parties is dated 20 November 2015. It was for a fixed term commencing 21 November 2015 to 18 November 2016 and has continued as a periodic tenancy.
2. On 22 January 2024 the landlords notified the tenants of a rent increase. The tenants contested the increase, and in an email to the landlords dated 4 March 2024 they refer to the premises as being in a state of "disrepair". The email details a number of required repairs. Ultimately the parties agreed to a lower rent increase. The landlords addressed some of the requested repairs.
3. On 27 November 2024, during a routine inspection of the residential premises, the tenants notified the landlords via their agent of a number of repairs required to the premises. These were noted in the Inspection Report.
4. On 9 December 2024 the landlords served a Notice of Termination on the tenants pursuant to s 85 of the RT Act. Vacant possession was required by 14 March 2025.
5. At the time the Notice of Termination was given, pursuant to s 85, a landlord could serve a 90-day notice to terminate a periodic agreement without needing to allege any breach. Section 82(1)(c) provided that notices under s 85 were not required to set out the grounds of the notice.
6. Section 85(3) at the time said that the Tribunal 'must' make the order for possession if the notice is valid and the tenant has not vacated, although the date for delivery of possession was (and is) a matter for the Tribunal (s 114).
7. Mr and Ms Kimpton, the tenants, did not vacate.
8. On 18 March 2025 the landlords lodged an application with the Tribunal seeking orders for the termination of the tenancy and vacant possession.
9. On 17 April 2025 the application first came before the Tribunal for conciliation and a group list hearing. The tenants claimed that the Notice of Termination was retaliatory, relying on s 115 of the RT Act. The Tribunal made orders for the exchange of evidence, and the matter was adjourned.
10. Section 115 says:

(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

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 matter came before the Tribunal for a 2 hour final hearing on 8 August 2025. At the conclusion of the hearing the Tribunal made the following orders:

"1 Zhi Feng Wu & Min Hong is amended to Zhi Feng & Min Hong Wu.

2 The Tribunal makes an order under section 85 of the Residential Tenancies Act 2010 terminating a periodic agreement where no grounds are required to be given.

3 The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

4 The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 08 November 2025.

5 The tenant is to pay the landlord a daily occupation fee at the rate of $88.57 per day from the day after the date of termination, 09 August 2025 , until the date vacant possession is given.

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

7 While the Tribunal finds that there may have been some degree of motivation to issue the termination notice contrary to s.115(2)(b) of the Residential Tenancies Act, in the exercise of the discretion given under the section it is not appropriate to declare that the notice has no effect or to refuse to make the termination order for the reasons referred to in the oral reasons. The application under s115 is therefore dismissed."

1. On 25 August 2025 the tenants filed a Notice of Appeal. They continue to live in the premises.

1. Section 80(2)(b) of the NCAT Act states that an appeal may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds".

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"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.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

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

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

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

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. The Notice of Appeal was lodged on 25 August 2025.
2. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) the application should have been lodged within 14 days of the tenants receiving the Tribunal's decision.
3. In the Notice of Appeal the tenants state that the decision was received on 8 August 2025. It is therefore around 3 days late.
4. Section 41 of the NCAT Act allows the Appeal Panel to make an order extending time for the filing of the appeal, if satisfied that leave should be granted.
5. In determining whether to extend time, the relevant factors to consider are identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and include the length of the delay, the reasons for the delay, the merits of an appeal (usually whether the appellant has a fairly arguable case) and the extent of any prejudice suffered by the respondent.
6. The landlords oppose the granting of an extension of time to file the appeal, "in the interests of fairness, procedural efficiency and adherence to the Tribunal's established rules".
7. The tenants' explanation for their delay is that they were misinformed about the filing deadline by the Tribunal Member and by Legal Aid and as soon as they realised the error, they acted immediately to file the Notice of Appeal.
8. We consider a 3-day delay in lodging the appeal to be insignificant. The short delay poses no prejudice to the landlords. For the reasons we explain below, the tenants have more than a fairly arguable case. These considerations weigh in favour of an extension of time.
9. On balance, we have decided to grant an extension of time to file the appeal.

1. The tenants sought leave to amend their grounds of appeal to the 3 grounds identified in their submissions folder filed on 24 October 2025. The landlords did not object. Accordingly, leave was granted.
2. The grounds of appeal are:

(1) The Tribunal's exercise of discretion miscarried;

(2) Findings were made without evidence;

(3) Denial of procedural fairness.

1. If successful in the appeal, the tenants seek the following orders:

(1) Allow the appeal;

(2) Set aside the orders terminating the tenancy and imposing an occupation fee;

(3) Declare the Notice of Termination to be of no effect, or refuse to make the termination order; alternatively, remit the application for rehearing before a different Member;

(4) Stay the termination order pending re-hearing.

1. In deciding the appeal, we have had regard to the following:

(1) Notice of Appeal filed 25 August 2025;

(2) Reply to Appeal filed 24 September 2025;

(3) Tenants' submissions (287 pages) filed 24 October 2025;

(4) Landlords' submissions (227 pages) filed 4 November 2025.

1. The parties' submissions were filed within the required time, extensions having been previously granted by the Appeal Panel.

1. Both parties sought to rely on evidence that was not before the Tribunal at first instance.
2. In Ros v Commissioner of Police [2020] NSWCATAP 70 at [33] to [35], the Appeal Panel set out the considerations to be applied in respect of allowing new evidence, when, as in this case, the appeal is not conducted as a new hearing:

"Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25].

In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. The role of the Tribunal at first instance in an administrative review proceeding is to decide what is the correct and preferable decision, as at the date of the Tribunal's decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. It is not relevant to an examination of that decision whether the circumstances have changed since that time - affirmed in Mielczarek.

Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error. As noted by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] - [14]:

'If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.'

See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 326."

1. During the appeal hearing, there being no identifiable prejudice to the landlords, we granted the tenants leave to rely on the following new evidence:

(1) Emails between the parties in May and June 2025 relating to the Summons issued at the tenants' request (4 pages); and

(2) Text messages dated July 2025 labelled "C2" and "C3", relating to Mr Kimpton's illness around the time of the return of the Summons.

1. The tenants also seek to rely on a 2 page document which show screenshots of Mr Kimpton's "Notes app" dated 8 August 2025. The document records the submissions Mr Kimpton says he intended to make before the Member at the final hearing on 8 August 2025 in support of the tenants' defence that the Notice of Termination was retaliatory.
2. We have determined to grant the tenants leave to admit the "Notes app" into evidence because:

(1) As evidence of the submissions Mr Kimpton was prepared to make orally at the hearing, it is relevant to Ground 3; and

(2) The document would allow the Appeal Panel to consider whether the tenants had a reasonable opportunity to be heard and have their submissions considered in the proceedings, or whether they were denied procedural fairness and, with the benefit of hindsight, whether a serious injustice has resulted.

1. The new evidence relied on by the landlords is:

(1) A document headed "Visual Pre-Purchase Building Inspection Report" by John Ge dated 28 August 2025. Its stated purpose is to identify existing building defects so as to formulate a maintenance and repair schedule; and

(2) A document headed "Formal quotation for major repair works" by builder Sung Ho Ahn dated 2 October 2025.

1. We have decided to refuse the landlords leave to rely on this new evidence because:

(1) Both documents post-date the hearing of 8 August 2025, and is therefore not evidence relevant at the time of the decision under appeal;

(2) The documents are dated 8 to 10 months after the service of the Notice of Termination and therefore are not relevant to the motivation of the landlords in issuing that Notice;

(3) They are detailed technical documents. The tenants received them just the day before the appeal hearing. We accept the tenants' objection that they did not have sufficient time to consider and respond to the documents and would suffer prejudice if they were admitted into evidence.

1. We commence our consideration with Ground 3 because it raises a question of law for which leave is not required (Prendergast; Cusumano; Donohoe v Albulario [2025] NSWSC 9, per Basten JA at [39]).

1. It is helpful to set out an overview of what happened during the Tribunal hearing on 8 August 2025.
2. The tenants provided a transcript which the landlords' representative agrees is an accurate record of the hearing.
3. Mr Kimpton represented the tenants at the hearing. Ms Greive represented the landlords as agent. She was accompanied by Ms Patel, property manager. All appeared in person.
4. The transcript extracts below reference the presiding Member as "M"; Mr Kimpton as "T"; and Ms Greive as "A".
5. At the commencement of the proceedings the Member recorded the parties' appearances. The tenant (Mr Kimpton) then told the Member that he had produced 3 copies of the documents on which he relied, however, an unpaginated version was mistakenly before the Member:

"... the one that was supposed to go to NCAT with page numbers, I have here? So ... I can ... trade it if you want ... [00:04:33] ... I was going to number my copy later and then didn't notice that [00:06:32] ..."

1. The tenant gave his paginated version to the Member and took the Member's unpaginated version.
2. The Member then asked about the documents produced under the summons issued by the tenants:

"M: Are you going to be trying to take me through some of those summons documents?

1. Referring to the summons documents, at [00:09:29] the Member asked the tenant:

"M: How many documents are you going to actually refer me to today, from that bundle?

M: I'll deal with the two bundles that the parties have provided first up."

1. At [00:11:41] the Member then asked whether the parties agreed about the repairs that had been conducted at the residential premises. The tenant briefly identified the outstanding repairs.
2. From [00:15:59] to [00:26:04] there was a lengthy exchange between the Member and the agent about the required repair works; whether vacant possession was required to facilitate the repairs; and the requirement of retaliatory motive pursuant to s 115.
3. At [00:18:35] the tenant answered "Yeah" to affirm the Notice of Termination was issued a short time after the routine inspection but otherwise did not speak during the 10 minute exchange.
4. At the end of the exchange between the Member and the agent, the agent addressed Mr Kimpton:

"A: At the last hearing, you did say you agreed to vacate the property, you just needed more time?

T: So, what I said is, we intend to move out of the property ... because we know now that the owner wants us to leave ...But in order to move out of the property, I need to have a job, because we've been rejected on every one of our applications for new places on my wife's income ..."

1. At [00:27:14] to [00:29:15] there was a further exchange between the Member and the agent. The Member identified the relevant circumstances of the case that might lead him to find the landlords' motivation in issuing the Notice of Termination was partly retaliatory, noting "I've got to hear all of the evidence to make that determination ..." [00:27:53].
2. The Member then asked the parties to have a discussion outside the hearing room:

"... and see what you can work out ... If you haven't resolved it, I'll hear the evidence then."

1. After an adjournment of about 7 minutes, the proceedings resumed. The parties informed the Member they could not reach an agreement. The tenant confirmed he wished to proceed with the hearing about the retaliatory eviction.
2. The Member identified the documents relied on by the parties and admitted them into evidence, saying to the tenant:

"And there may be some of the summons documents that you'll take me to ..." [00:35:38]

1. The Member then outlined the procedure for the hearing:

"Now we will proceed in this manner. I will in a moment ask each of you whether or not you take a religious or non-religious promise to tell the truth. I'll administer those oaths or affirmations, adopting the evidence, and then I will hear from the applicant first up in relation to substantially the validity of the notice ... I'll check the validity of the notice. I'm satisfied the notice is valid, it then swings to the case on the part of the tenant. So I'll ... swap over and we'll hear from Mr Kimpton as to take me through the evidence about the retaliatory aspect. At the end of that, well, technically, at the end of your evidence in relation to the notice, if he has any questions by way of cross examination, in respect of that notice, he can cross to you. But at the end of his evidence about the retaliatory, you'll have a chance to ask him the relevant questions about his evidence, and then I'll hear from you in terms of your evidence about the retaliatory aspect. At the end of that, he may put any questions he has to you. Hopefully at that point we're in a position to make the decision." [00:36:43]

1. The parties took their oaths.
2. The Member then began to question the agent about the provisions of the tenancy agreement, and the Notice of Termination, noting the specifics about the date of service and termination date:

"... well over 90 days' notice there, so I'm satisfied as to the period of notice." [00.45:05]

1. When questioned by the Member, the tenant confirmed he received the Notice.
2. At [00:46:27] the Member read out the provisions of s 85 and then concluded:

"So, in terms of the findings that I'm required to make under s 85, I am satisfied I must terminate the tenancy. Now, that is subject to the tenant's application ..."

1. At [00:49:09] the Member observed that the landlords' application was filed on 18 March 2025 "after the vacant possession date as required" and that the tenants have not vacated the premises. The Appeal Panel notes this is a reference to the requirements of s 83(2) of the RT Act.
2. Between [00:49:45] and [00:53:37] there was an exchange between the Member and the agent about when the tenant first raised the issue of retaliation in the Tribunal. The tenant did not speak during this exchange, nor was he questioned.
3. At [00:53:41] the Member said:

"Step 1. I'm satisfied under s 85 as it then stood, a termination order must be made, that is subject to the consideration of the next issue, which is the application under s 115."

1. The Member then read aloud the provisions of s 115 of the RT Act. At [00:56:09] he said:

"M: Alright, now are there any questions that you have of Ms Greive in relation to that aspect up to there, Mr Kimpton?

M: Now look, I'll swap over, and the onus now comes to you to establish on your evidence that the landlord was wholly or partly motivated to give the notice ... for any of the following reasons ..."

1. With reference to s 115, the Member then asked the tenant whether he had applied or proposed to apply to the Tribunal for an order or had taken any other action to enforce his rights. At this point the agent interjected to answer those questions.
2. At [00:58:01] the agent again interjected "Correct me if I'm wrong Member ..." and queried whether requesting repairs would fall within the requirements of s 115. There was a further exchange between the Member and the agent.
3. At [01:00:10] the Member said:

1. The tenant then began to give a "summary overview". After about 20 seconds he was interrupted by the Member who asked the tenant to take him to the evidence which established the tenants' request for maintenance.
2. At [01:01:52] the tenant pointed to the inspection report which notes the repairs requested by the tenants. The agent then interjected over the tenant.
3. From that point, for about 30 minutes to [01:31:43], the hearing proceeded as a three-way exchange between the Member, the agent and the tenant, with the focus on whether the tenant had requested repairs and the extent of those repairs.
4. During this three-way exchange, the transcript records multiple occasions of "simultaneous speech", and the tenant being interrupted by the Member and at times by the agent challenging the tenant's evidence and giving her own evidence (for example, at [01:27:47]).
5. At [01:32:08] the Member said:

" ... it seems to me as though there could well be an aspect of retaliation in that notice."

1. For the next 5 minutes, an exchange occurred between the Member and the agent in response to the Member's comment, focussed on the extent of the repairs and whether the Notice was retaliatory. The tenant was not invited to speak and did not speak.
2. At [01:37:16] the tenant made a brief reference to the bargeboard repair. The three-way exchange then resumed for around another 4 minutes, focussed on the repairs, with minimal contribution by the tenant.
3. At [01:41:37] the Member said to the tenant:

"What do you want to say as to why its retaliatory?"

1. The tenant began "I'd written notes for myself of what I wanted to say..." After about 25 seconds he was interrupted by the Member who proceeded to give his observations about the evidence regarding repairs.
2. From [01:45:08] the tenant attempted several times - unsuccessfully - to interject.
3. At [01:47:49] the following exchange occurred:

"A: Can I offer an alternative? The tenant has agreed to vacate, just needs some time. Can you terminate with ...

M: That's why I said the two of you have to talk to each other.

M: Well then that may be a possibility that I take into account as well. This is very much in my discretion."

"T: So could I make a statement just quickly, Member?

1. The tenant then made brief reference to the bargeboard repair. The next 15 minutes were taken up by an exchange between the tenant and the Member about the repairs, and by the Member's observations about the evidence and his discretion under s 115. The Member expressed his "concern" regarding the lack of evidence from the landlords about the need to repair the bargeboard and leak. There was also an exchange about why the tenant had not applied to the Tribunal for a repair order.
2. Then at [02:06:07]:

"M: ... even if there has been to some extent some degree of retaliation in respect of the repair for the bargeboard, I'm not satisfied that it is appropriate under s 115 to declare the termination has no effect ... I am inclined to make an order as required under s 85 ... I do intend to make that order on the longest possible notice and vacate ... I'm intending to make vacant possession occur within 90 days.

M: That gives you a significant period of time to take further steps as you need to take ... I think I am balancing both of your considerations ... I am concerned somewhat to the actions of the landlord and what the landlord hasn't addressed ... and what you say about your finances but I'm also not considering an application by you in terms of the sorts of orders that may have been the subject of some retaliatory fear. I do note, however, that in your circumstances ... I should give you as long as possible to go ... we'll make the termination order in s 85 and make it on vacant possession in 90 days for these reasons."

1. The tenants contend they were denied procedural fairness because, in brief:

(1) They did not have a real chance to respond to the landlords' submissions that vacant possession was required due to repairs, an issue which was "determinative" in the proceedings.

(2) The tenants did not have a fair opportunity to present their submissions regarding retaliation. The Tribunal did not invite those submissions until halfway through the hearing and their submissions were interrupted and curtailed.

(3) The Tribunal accepted the landlords' evidence that repairs were required to a bargeboard and roof leak, without considering the tenants' evidence or giving them a fair chance to respond.

(4) Due to a Registry error, an incorrect, unpaginated bundle of documents was put before the Tribunal. At the Member's request, the tenants swapped that unpaginated bundle for their own paginated bundle. The tenants were disadvantaged without the benefit of their own marked-up bundle because they could not "locate, sequence and rely on evidence at speed."

(5) The Member's reasoning drew on his own unrelated personal experience, rather than the evidence before him.

(6) The reasons for the decision were inadequate.

1. The landlords respond to this ground, in brief, as follows:

(1) During the hearing, Mr Kimpton was allowed time to produce information and had ample time to speak.

(2) Mr Kimpton interjected many times during the hearing and the Member rightly asked him to wait his turn.

(3) During the hearing Mr Kimpton advised the Tribunal the tenants wished to vacate but needed more time: this was the rationale for the orders.

1. In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Kirby J [35] said:

"It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law...."

1. This applies to the Tribunal. It has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(2) and s38(5)(c) of the NCAT Act).
2. In Boreland v Brewis [2024] NSWCATAP 140 at [60] to [67] the Appeal Panel outlined the relevant principles:

"It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice ....

Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: .... Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.

If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).

As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": ...

Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

'An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made .... Finding that a properly conducted application would have inevitably produced the same result is not done lightly: ...."

1. In Jeray v Blue Mountains City Council [2024] NSWCATAP 66 the Appeal Panel considered the obligation to assist a self-represented party. It relevantly said at [14] - [15]:

"Procedural fairness includes a duty to provide assistance to a self-represented party in certain circumstances: Lee v Cha [2008] NSWCA 13 at [49]. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [55] the Full Court gave the following examples of the kinds of practical assistance that may be appropriate:

'[55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:

(a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283.

(b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47].

(c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.'"

1. Applying those principles, we are satisfied that several procedural irregularities resulted in a denial of procedural fairness.
2. First, the proceedings were unstructured. The Member did not explain the procedure of the hearing until after the adjournment. By that time a 30 minute exchange had already occurred between the Member and the agent, which addressed material issues such as the extent of the repair works and whether vacant possession was required to facilitate the repairs. At that point the agent had not been sworn in to give evidence and the tenant had not been informed of his opportunity to cross examine, nor was he invited to do so.
3. After the adjournment, when the hearing formally commenced, the hearing did not proceed as the Member had explained.
4. Instead, during the course of the agent's evidence, the Member made factual findings that were material to the outcome:

(1) The required 90 days' notice was provided - [00.45:05];

(2) "I must terminate the tenancy" pursuant to s 85 - [00:46:27].

1. It was only after those findings had been made that the tenant was invited to question the agent.
2. The hearing did not proceed in the orderly manner outlined by the Member, that is, with each party giving their evidence, and then the other party cross examining. Rather, there were regular interjections by the agent while the tenant was giving evidence, including to ask the tenant questions and provide her own evidence.
3. Whilst a represented litigant might have been expected to ascertain what was transpiring, and to raise an objection during the hearing, the same cannot be said of an unrepresented litigant. For an unrepresented litigant the manner in which the proceedings were conducted would have been confusing.
4. Further, the transcript speaks for itself: the tenant did not have an adequate opportunity to present his evidence and submissions:

(1) The "Notes app" documents shows that the tenant had prepared detailed submissions, but those submissions were largely not presented at the hearing.

(2) When the tenant was invited to address the Member, the Member almost immediately cut him off - [01:00:10] and [01:41:37].

(3) While the Member acknowledged at least twice that the tenant wanted to address the documents produced under summons, the Member did not facilitate this.

(4) When the Member and the agent had extended exchanges about material issues, the tenant was not given the opportunity to make his own submissions about those issues (for example, at [00:49:45] to [00:53:37], and at [01:32:08]).

(5) The Member did not attempt to control the agent's interjections.

(6) When the Member asked the tenant questions, the tenant was often not given a full opportunity to answer.

1. We recognise that the Tribunal's procedures are intended to be flexible, and that s 38 of the NCAT Act permits the Tribunal to determine its own procedures. However, in our view, the above shortcomings meant that the unrepresented tenant was denied a fair opportunity to present his case and that there exists a realistic possibility that the outcome could have been different had those errors not been made.
2. In particular, at [01:47:49] when the agent submitted that termination with an extended time to vacate was an option - which was ultimately the Tribunal's decision - the tenant was not offered the opportunity to make submissions in response, despite the Member stating that "may be a possibility" and "is very much in my discretion."
3. The tenant was not afforded an adequate opportunity to explain that his willingness to vacate was dependent on obtaining an alternative tenancy, a difficult prospect given the family's reduced income due to his unemployment.
4. For these reasons we allow the appeal on this ground.

1. While it is not necessary to consider the other procedural issues raised by the tenants, we would also uphold the appeal because of the inadequacy of the reasons for the decision.
2. The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P, Ward JA agreeing) set out the principles relevant to the adequacy of reasons. They were summarised by the Appeal Panel in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58]. Pertinently, the Appeal Panel said:

"Even in the less formal setting of a tribunal, there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied in relation to the Tribunal by s 62(3) of the NCAT Act which requires there to be set out in the reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made."

1. Those principles have been followed and applied many times by the Appeal Panel, including most recently on 10 October 2025 in Tiglin Constructions Pty Ltd v Warhurst [2025] NSWCATAP 251. In that case, the Appeal Panel stated at [72] that the reasoning need not be unduly long or elaborate but needs to be sufficient to explain why a decision was made.
2. Applying these principles, we are satisfied that the Tribunal's reasons for the decision are inadequate in a number of respects. Without being exhaustive, the problems with the reasons include the following:

(1) Because findings of material facts were made in the course of the hearing, the Tribunal's reasoning process that led to those findings was not disclosed;

(2) The basis of the finding that 90 days to vacate was the "longest possible notice" was not identified;

(3) Aside from "balance", the reason for exercising discretion against a declaration that the Notice was invalid was not adequately explained.

1. We accept that reasons can be brief, but to paraphrase the language of the Supreme Court in Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [86], the Tribunal's reasons in this instance failed to provide any, or any adequate, statement of the reasoning processes that led it to its conclusions.
2. Whether this error is expressed in terms of procedural fairness (as raised by the tenants) or as constructive failure to exercise jurisdiction, we consider that this error raises a question of law and we allow the appeal on that basis also (see Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [63], per Bell CJ and Kirk JA).

1. Since we allow the appeal for the above reasons, it is not necessary to consider the other grounds of appeal raised by the tenants.
2. The Appeal Panel makes the following orders:

(1) The time to file the Notice of Appeal is extended to 25 August 2025.

(2) The appeal is allowed.

(3) The orders of the Tribunal in 2025/00105533 dated 8 August 2025 and amended by the Appeal Panel on 5 November 2025 are set aside.

(4) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for reconsideration of the respondents' application and the appellants' defence that the termination notice is a retaliatory notice, with leave for the parties to adduce such further evidence as the Tribunal thinks fit.

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.