Li v WDL International Investments Pty Ltd

1. The tenancy agreement was for a fixed term commencing 1 October 2023 to 30 April 2024, thereafter continuing as a periodic agreement. Rent was $1000.00 per week.
2. The respondent served a number of Notices of Termination on the appellant and made earlier applications to the Tribunal for termination which were withdrawn.
3. The Notice of Termination which is the subject of this appeal was served on 20 February 2025 on the grounds of non-payment of rent, pursuant to s 88 of the RT Act. The date on which the appellant was required to vacate the premises was 12 March 2025.
4. On 13 March 2025 the respondent filed an application in the Tribunal seeking a termination order due to non-payment of rent.
5. The application came before the Tribunal on 14 April 2025 when the following orders, relevantly, were made:

"1 The Tribunal makes an order under the Residential Tenancies Act 2010 terminating the residential tenancy agreement immediately, as the tenant has breached the agreement by failing to pay rent or charges.

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

3 The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 05 May 2025.

4 The tenant is to pay the respondent a daily occupation fee at the rate of $142.86 per day from the day after the date of termination, 14 April 2025, until the date vacant possession is given

...

7 The Tribunal orders that the respondent Kai Li is to pay the applicant WDL International Investments Pty Limited the sum of $15,000.00, immediately. Details of the Money order: 1. Rent Arrears $15,000.00."

1. The Tribunal provided oral reasons for the decision which we outline below.
2. The appellant vacated the premises on 29 April 2025 and paid the respondent $15,000.00, as well as an occupation fee to the date he vacated.
3. On 29 April 2025 the appellant lodged this appeal.
4. On 27 May 2025 the respondent entered into a tenancy agreement with different tenants, for a fixed term to 15 June 2026.

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 Schedule 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:
2. 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:

(a) Issues of principle; or

(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 states the appellant received the Tribunal's decision on 15 April 2025. This was not disputed by the respondent who did not file a Reply to Appeal.
2. We are satisfied the Notice of Appeal was filed within the time by specified cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).
3. The appellant challenges orders 1 to 4 and order 7 of the Tribunal.
4. He argues that the decision of the Tribunal was not fair and equitable and against the weight of evidence because, in brief:

(1) The Tribunal did not fairly consider his investment and ownership rights in the residential premises, but "treated the situation as a standard tenancy dispute";

(2) The Tribunal did not give adequate consideration to evidence including Board meeting Minutes, investment summaries, strata management agency agreement and bank transfer records which demonstrate the appellant has a "financial stake" in the property;

(3) The imposition of a daily occupation fee is "unfair and inequitable" because "I was not simply a tenant but an investor with an expectation of ownership";

(4) The order to pay $15,000.00 is unjust because it fails to take into account that "I was misled into believing I had ownership rights";

(5) The Tribunal denied the appellant an opportunity to fully present his case, including because of a language barrier and lack of legal support.

1. We consider that Ground 5 is better characterised as a denial of procedural fairness which raises an error on a question of law. The appeal may be brought as of right on that ground (Prendergast; Cusumano; Donohoe v Albulario [2025] NSWSC 9, per Basten JA at [39]). The other grounds require leave of the Tribunal.

1. The following material was before the Appeal Panel:

(1) Notice of Appeal filed 29 April 2025;

(2) Appellant's submissions (160 pages) including a transcript filed 5 June 2025;

(3) Respondent's submissions (14 pages) filed 30 June 2025;

(4) Documents submitted to the Tribunal by the respondent at the original hearing (38 pages);

(5) Residential tenancy agreement between the respondent and new tenants dated 27 May 2025, submitted by the respondent.

1. The appellant confirmed that, of the 160 pages he sought to rely on, the Chronology and Appendices A to L were before the Tribunal at the original hearing.
2. He sought leave to rely on evidence that was not before the Tribunal at first instance, that is, Appendices M to U.
3. 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.'

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

1. Here, the evidence not before the Tribunal at first instance includes a statutory declaration of Ching Wah Uy (business partner of Mr and Ms Liu) dated 30 May 2025. This post-dates the original Tribunal hearing and is therefore not evidence relevant at the time of the decision under appeal. We refuse leave to rely on the statutory declaration.
2. The other evidence pre-dates the original hearing and includes Minutes of a Strata Committee meeting; utility bills addressed to the appellant at the subject premises; emails; and a claim for refund of bond money by a tenant named Meng Ying regarding different residential premises, with Kai Li of WDL International Investment Pty Ltd named as the landlord.
3. In addition, there are bank statements in the name of the appellant which include debits described as "WDL payment" and "WDL Loan payment".
4. We have decided to refuse the appellant leave to rely on that additional evidence because it is unlikely the evidence would have produced a different result at the Tribunal. A key issue for determination was whether there was a residential tenancy agreement between the parties. As we explain below, the finding of the Tribunal that there was such an agreement which commenced on 1 October 2023 was open on the evidence. Whatever occurred prior to the commencement of the agreement is irrelevant to the existence of that agreement.

1. The appellant provided a partial transcript of the proceedings which the respondent's agent was "not sure" was accurate due to the passage of time. In any event, the respondent did not dispute the contents of the transcript.
2. The transcript is of limited assistance to the Appeal Panel because:

(1) As noted, the appellant confirmed that the transcript records only part of the Tribunal proceedings;

(2) There are no timestamps that might allow an estimate of what proportion of the hearing the transcript does record, and what parts it omits;

(3) Most of the transcript does not state the identity of the speaker;

(4) The first part of the transcript in particular contains a series of questions, presumably by the Member, but does not identify who provided the answers.

1. These issues mean we can only put limited weight on the transcript in determining whether the Tribunal's decision was not fair and equitable, or whether the orders were inconsistent with the evidence or the weight of the evidence, or whether the appellant was denied procedural fairness because of the way the hearing was conducted.

1. It is helpful to outline the Tribunal's oral reasons for its decision.
2. The reasons commenced after an adjournment for the Tribunal to consider the parties' evidence and submissions.
3. Just prior to the adjournment, the Tribunal identified the issues for determination as, first, whether there is a residential tenancy agreement so that Tribunal has jurisdiction; if so, whether the Notice of Termination is valid; whether the tenancy agreement should be terminated; if so, the date of vacant possession; and whether the tenant owes rent arrears to the landlord.
4. When the proceedings resumed, the Tribunal began its reasons by noting again the documents the parties relied on, in the appellant's case, the 77 page bundle:

"The respondent gave evidence that the bundle of 77 pages was true and correct and did not require any amendment ... [it] was the evidence in its entirety of the respondent. Both parties were given the opportunity to make a statement."

1. The Tribunal summarised the appellant's oral submissions, including:
   • Mr Li has been living in the premises since 2015 as a shareholder and investor in the respondent company;
   • Until signing the tenancy agreement, Mr Li lived in the premises for free;
   • Mr Li's family has invested nearly $10 million in the respondent company;
   • When the family made the investment, Mr Li was told by Wensheng Liu that the "company had nine units, and seven more belonged to him, including the one at his present residence."
   • Mr Li voluntarily made shareholder contributions;
   • There was an agreement between the parties that ownership of the premises would be transferred to Mr Li;
   • The tenancy agreement was "only to show the bank that the company had an agreement to pay the mortgage interest" on the tenanted property;
   • Mr Li did not understand the agreement he made with the respondent to settle earlier Tribunal proceedings, resulting in their withdrawal. He trusted Ms Liu but she misled him;
   • The agreement to settle the earlier proceedings was not valid;
   • At the time of that agreement Mr Li did not fully understand the legal process;
   • Mr Li is not a tenant but a shareholder or investor. He is the rightful owner of the property;
   • Mr Li has been denied access to company documents;
   • The Tribunal should take into consideration Mr Li's role in the company, and payments on page 63 of his bundle "which indicate large sums of money" were transferred via a Combank app, an amount of about $500,000.00.
2. The Tribunal then gave its reasons for refusing an adjournment application Mr Li had made during the hearing. The adjournment was said to allow Mr Li an opportunity to present more evidence that he was the owner of the property, including oral evidence about statements made up to 10 years ago. The main reason the Tribunal refused the adjournment was because even if the evidence was submitted:

"that evidence is not capable of assisting any further the case that the respondent has put. The impact on the respondent if the request was granted would be to delay the hearing of this matter and delay the determination of this matter to the financial detriment of the applicant ... any further evidence as to an oral agreement in relation to dealings with land are not going to assist the respondent in their case."

1. We note that the appellant has not appealed the Tribunal's decision to refuse the adjournment.
2. The Tribunal then turned to the issues for determination. The Tribunal:

(1) Found there was a residential tenancy agreement on foot, commencing 1 October 2023 which continues as a periodic agreement, and therefore the Tribunal had jurisdiction;

(2) Declined to make a finding as to whether there was a residential tenancy agreement prior to 1 October 2023, because, whatever transpired before that date, a residential tenancy agreement was now in existence;

(3) Rejected the appellant's submission that the 1 October 2023 tenancy agreement was a "sham" to defraud the bank;

(4) Found that documents in Mr Li's bundle show rent payments from 2 October 2023 to 11 November 2024;

(5) Referring to a document dated 6 November 2024 (page 29 of the appeal respondent's documents), in earlier proceedings 2024/00382307 the parties had agreed the "rental agreement" would continue to 15 September 2025, with rent of $1000.00 per week. (The Appeal Panel notes that, as a result, the application was withdrawn and an order made for its dismissal on 6 November 2024.)

(6) Found the Notice of Termination was valid, in that it complied with the requirements of the RT Act, and it was served on the appellant as required by the RT Act;

(7) Found Mr Li was still in possession of the property;

(8) Found the rent arrears were "very substantial", around $20,000.00;

(9) Was "really satisfied the tenancy agreement should be terminated."

(10) Found that, in the circumstances of the case, including that Mr Li had lived at the premises since 2015, a period of 3 weeks for vacant possession was appropriate.

1. We commence our consideration with Ground 5 because it raises a question of law for which leave is not required.

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. Section 38(6)(c) says that the Tribunal:

in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

1. 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: ...."

(References to authorities omitted.)

1. The extent of the Tribunal's duty to assist self-represented parties was recently considered in McNeill v Clarence Valley Council [2025] NSWCATAP 184. Relevantly at [185] and [186]:

"We have already noted the appellant's status as a self-represented party before the Tribunal at first instance. This raises the question of the extent of the duty on NCAT to assist a self-represented party in administrative proceedings such as those conducted in the Tribunal at first instance. In Chalik v Chalik [2025] NSWCA 136 (Chalik) at [67]- [72], the Court of Appeal recently considered the extent of the duty on a court to assist a self-represented party in civil proceedings. The Court (Bell CJ, Payne JA, Free JA) rejected the proposition stated in an earlier Court of Appeal decision in MHT v State of New South Wales [2025] NSWCA 122, that a court has an "obligation to ensure" that an unrepresented party does not, "because of lack of legal skill, fail to claim rights or put forward legal arguments". That statement "significantly overstates a court's responsibility to an unrepresented litigant and is far too absolute in its use of the expression "an obligation to ensure ...": Chalik at [68].

In Chalik, the Court reviewed previous decisions of intermediate appellate courts which have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: at [69]."

(1) He was not given a fair opportunity to fully present his case, particularly regarding his "legal standing" as an investor;

(2) The Tribunal did not allow him to present all relevant documents;

(3) His right to access necessary company documents was ignored "which would have provided a clearer understanding of my relationship with the property and the company."

(4) The Tribunal did not allow him to "seek professional legal advice in a timely manner" due to the long holiday period and as a result the appellant could not fully advocate for his rights;

(5) The Tribunal failed to take account of language barriers and the appellant's limited English proficiency;

(6) The appellant was placed at a significant disadvantage in understanding "the full scope of the proceedings and the implications of the orders made" and this led to an unfair hearing process and a decision that did not take his personal circumstances into proper consideration.

1. Applying the above legal principles, we are not persuaded the appellant was denied procedural fairness.
2. The transcript, as limited as it is, shows that:

(1) The Tribunal explained to the parties how the hearing would proceed and asked them whether they had any questions about the process;

(2) The Tribunal set out 2 "rules": no interrupting and no personal attacks;

(3) The Tribunal identified the documents the respondent/landlord was relying on and confirmed that the appellant had received a copy;

(4) The Tribunal received the appellant's documents, including Board Minutes, noted they comprised of 77 pages, and confirmed the respondent had received a copy;

(5) In its oral reasons, the Tribunal again referred to the appellant's 77 pages of documents.

1. It cannot be said that the appellant was denied the opportunity to present all his documents. Nothing in the transcript indicates the appellant sought access to the respondent company's documents.
2. The Tribunal records the following towards the commencement of the proceedings:

"Sir, you've given me a bundle of documents with page numbers up to number 77. Did you prepare this bundle? Yes.

And does anything in that bundle require change or amendment at this time? No. So it's all correct in there, is it? Yes. The contents, to the best of your knowledge, are true and correct, are they? Yes.

Okay. Thank you. I'm going to identify this as Exhibit 1, okay? This is the evidence of the respondent.

Is that your evidence today, sir? These documents? This is the evidence you're relying on today, is it sir? Okay. Thank you ... That's the evidence complete."

1. The Tribunal then told the parties they could provide oral submissions:

"I'm going to give you a short period of time, 10 minutes each, to tell me what evidence I should take into account and why, in relation to your application. Okay? Do you understand? Okay."

1. The transcript does not record the parties' oral submissions. Therefore, we do not know how much time the appellant was allowed to present his case, nor whether he had the time reasonably necessary for the fair and adequate presentation of his case. If the Tribunal did allow him 10 minutes, we are not persuaded that was not an adequate amount of time, even considering the 77 pages of evidence submitted by the appellant.
2. Moreover, while the transcript does not record the appellant's oral submissions, the Tribunal's reasons outlined above clearly indicate it considered those submissions, including that the appellant was an owner/investor, rather than a tenant. The Tribunal explained why it did not accept those submissions.
3. We are not persuaded the Tribunal denied the appellant the opportunity to "seek professional legal advice in a timely manner":

(1) The transcript does not record that the appellant sought an adjournment to obtain legal representation, nor raised the issue of legal representation with the Tribunal;

(2) The notice of conciliation and hearing (group list) was emailed to the appellant on 13 March 2025, 1 month prior to the Tribunal hearing;

(3) The same notice alerted the appellant to "Important information" with hyperlinks to the NCAT website. The information included links for legal help and advice, a hearing preparation checklist, and a statement that "The case may be finalised at the conciliation and hearing (group list)."

1. While the appellant was assisted by an interpreter at the Appeal Hearing, we are not persuaded his English is so limited that it was a barrier to his participation during the Tribunal hearing where he was unassisted.
2. The transcript, while limited, does record Mr Li answering some questions from the Tribunal and engaging in the proceedings. There is no evidence, merely Mr Li's assertion, that his English was so limited that it created a significant disadvantage and prevented him from understanding "the full scope" of the proceedings.
3. Far from being denied procedural fairness, we consider the Tribunal took reasonable measures to ensure the appellant had a reasonable opportunity to be heard and have his evidence and submissions taken into account.
4. For these reasons Ground 5 is not made out.

Consideration - Grounds 1 to 4 - Was the decision not fair and equitable or against the weight of evidence?

1. A decision can be against the weight of the evidence if the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that it was not one a reasonable Tribunal member could have reached (Collins v Urban at [77]).
2. The reasons of the Tribunal clearly set out the evidence that was before it. The reasons record that the Tribunal took that evidence into account, including the evidence that the appellant argued demonstrates he is an owner/investor.
3. Taken at its highest, the documentary evidence before the Tribunal establishes that:

(1) Mr Li in the past was a director and secretary of the respondent company and as of 29 May 2024 (the date of the ASIC search) held 5 ordinary shares in the company. It appears he acquired those shares on 23 December 2021.

(2) Companies including GR Capital Pty Ltd, GuoRui Company and GR Capital Investment Group invested in development projects at Hurstville. Documents, including minutes, from 2011 to 2013, named the directors and investors. Kai Li is not named.

(3) After the completion of the development project, each director was to receive an apartment "which can either be self-occupied or handed over to the company to manage it. If it is managed by the company, the company will transfer the monthly rent to the director's account on time."

(4) In 2014 apartments 702, 802 and 801 in the "Hurstville No 1 Project" were to be allocated to shareholders as dividends. Kai Li is not named as a shareholder. The subject premises, which is unit 2, is not named.

(5) In around 2015 the respondent company became fully owned by GR Capital Pty Ltd (page 45).

(6) Resolutions of a Board Meeting of GR Capital Pty Ltd dated 19 March 2015 record that 3 properties "under the name" of the respondent company "are substantially owned by the three shareholders who will confirm method of allocation in the future." (page 48) Kai Li is not named as a shareholder.

1. The appellant has not explained how the evidence that was before the Tribunal preponderates so strongly against the conclusions found by the Tribunal that it can be said they were not conclusions a reasonable Tribunal member could have reached.
2. In particular, the evidence of the board meetings and resolutions, shareholdings and dividends is not relevant to the issues which the Tribunal accurately identified were for determination, including whether there was a residential tenancy agreement between the parties. As the Tribunal said in its reasons:

"Whatever transpired before [1 October 2023], there emerged a residential tenancy agreement in relation to this property ..."

1. We are not persuaded the decision was not fair and equitable:

(1) The transcript indicates that the Tribunal did consider the evidence of the appellant's claim of his investment and ownership rights in the premises; and

(2) Having found there was a tenancy agreement between the parties - a finding clearly open on the evidence - the orders for payment of a daily occupation fee and rent arrears were fair and just.

1. Since neither of the two grounds requiring leave have been established, it is not necessary to consider whether the discretion to grant leave to appeal should be exercised in favour of the appellant.
2. For all of these reasons we refuse to grant leave to appeal and dismiss the appeal.

1. In its written submissions, the respondent requests "compensation of $6,500.00 for the additional work and hardship caused by the Appellant's submission of a large volume of materials that are essentially irrelevant and of no significant value to this appeal."
2. We understand this to be an application for costs.

1. What was in dispute on the appeal did not exceed $30,000. Therefore, the general rule in relation to costs in the Tribunal is that unless special circumstances are established, the parties pay their own costs: s 60(1) and s 60(2) of the NCAT Act.
2. Section 60(3) of the NCAT Act sets out factors to which regard may be had in deciding whether there are special circumstances. These factors are:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

1. The respondent bears the onus of establishing there are special circumstances in this case.

What legal principles are relevant to the costs application?

1. The term "special circumstances" is not defined in the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
2. In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14] the Appeal Panel stated:

14. An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act.

Has the respondent established that there are special circumstances that warrant an order for costs?

1. The respondent's submissions suggest that the basis for its claim that special circumstances exist in relation to the appeal proceedings is the lack of merit in the appellant's case, together with the hardship its director has suffered as a result of the appellant's conduct.
2. We are not satisfied that the appellant's conduct of the appeal gives rise to special circumstances. The appellant complied with the procedural directions made at the callover and the conduct of the appeal was generally unremarkable. We are not satisfied that the respondent was disadvantaged by the manner in which the appellant conducted the appeal proceedings. Nor are we satisfied that the manner in which the appellant conducted the appeal prolonged the appeal proceedings.
3. In relation to the merit of the appellant's case on appeal, the fact that the appeal was dismissed and leave to appeal was refused does not of itself amount to special circumstances. It does not mean that the appellant's case on appeal was unarguable. We are not satisfied that the relative strengths of the parties' cases amounts to special circumstances.
4. We have also had regard to other factors set out in s 60(3) in considering whether special circumstances exist. While we understand that the respondent's director feels aggrieved by the appellant's conduct of the appeal proceedings, we are not satisfied that the appeal was frivolous or vexatious.
5. We are unable to identify any other factors relevant to the appeal proceedings which amount to special circumstances warranting an order for costs.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) No order as to costs with the intention that the parties bear their own costs.

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.