Megan Thomson v City West Housing Pty Ltd

Catchwords: APPEALS — procedure — stay pending appeal — procedural fairness — where NCAT made orders for possession and termination of plaintiff’s tenancy — where plaintiff did not receive documents prior to NCAT hearing — where balance of convenience favours plaintiff

Legislation Cited: Residential Tenancies Act 2010 (NSW) ss 50, 90, 92

Cases Cited: Dogra v Dogra (No 3) [2024] NSWCA 208

Category: Principal judgment

Parties: Megan Thomson (Plaintiff)
City West Housing Pty Ltd - ABN 47 065 314 758 (Defendant)

Representation: Counsel:
M Cobb-Clark (Plaintiff)
Solicitors:
Legal Aid (Plaintiff)
B Defreitas (Defendant, in person)

File Number(s): 2026/00115664

JUDGMENT – DUTY – EX TEMPORE – REVISED

1. In this matter, Ms Megan Thomson seeks leave to appeal an order of the decision of the Appeal Panel of Senior Member Blake AM SC of the New South Wales Civil and Administrative Tribunal (‘NCAT’) dated 18 March 2026, refusing a stay of orders made on 12 February 2026, being a termination order and an order for possession of a property at City West Housing, pending a determination of her appeal before an Appeal Panel at NCAT which is listed on 5 May 2026.

2. On 7 January 2026 the defendant brought proceedings against the plaintiff, seeking orders that the plaintiff's residential tenancy agreement be terminated because of breaches of ss 90 and 92 (and curiously s 50) of the Residential Tenancies Act 2010 (NSW).

3. When the matter was heard before General Member Foda on 12 February 2026, Mr Defreitas appeared on behalf of the present defendant. During the course of that hearing it transpired that the plaintiff, who was then in custody at Wellington Correctional Centre, had never received the documents initiating the proceedings and the accompanying evidence which was relied upon by Mr Defreitas, although he had emailed the documents to an email address at the Correctional Centre. It is unsurprising that the plaintiff never received those documents, because she was in custody.

4. In any event, Ms Thomson alerted General Member Foda that she had no documents before her during the hearing of the matter, but General Member Foda proceeded to hear the matter nonetheless. She found that in the circumstances of the evidence and Mr Defreitas’s submissions, Ms Thomson’s conduct was "certainly in contravention of ss 50, 90 and 92 of the Residential Tenancies Act."

5. Soon thereafter, on 26 February 2026, an appeal was filed on behalf of Ms Thomson in NCAT. Bearing in mind the content of the Residential Tenancies Act, it appears that General Member Foda’s reliance upon ss 50 and 92 was arguably erroneous at law. However, most importantly, it appears to me that there is a real issue about procedural fairness with respect to the conduct of the hearing at NCAT on 12 February 2026.

6. The applicant seeks a stay in these proceedings, until the determination of the Appeal Panel of NCAT.

7. The law with respect to stays is not in doubt. In Dogra v Dogra (No 3) [2024] NSWCA 208, Griffiths AJA said at [18]:

“The relevant principles are well-known and are not in dispute. They are conveniently summarised by Payne JA in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] (cited by Meagher JA in City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit Trust v Gemi 130 Pty Ltd [2024] NSWCA 139 at [21]):

‘The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.’”

8. In this particular case, in my opinion, the appeal does raise serious issues for determination by the Appeal Panel, in particular as to whether or not the plaintiff was accorded procedural fairness at first instance.

9. Further, in my opinion, there is a real risk that the applicant will suffer significant prejudice or damage if the stay is not granted, as her tenancy will be terminated and she will become homeless.

10. I then consider the balance of convenience and the competing rights of the parties. I have already set out the rights of the plaintiff. The defendant is a company limited by guarantee and provides affordable housing to members of the community and has, no doubt, a long list of persons who require housing. If the plaintiff is unsuccessful on her appeal, the defendant will have a property that will have been vacant for approximately six weeks or thereabouts. Balancing the rights of the parties, difficult as it is, and noting that the defendant has done nothing wrong — this being a problem which occurred as a result of the process of the first instance proceedings — in my opinion, the balance of convenience favours the plaintiff.

11. In those circumstances, I make the following orders:-

12. I grant a stay of the decision of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal dated 12 February 2026 making a termination order and an order for the possession of the property, and to the extent necessary, the decision of the appeal panel of the NSW Civil and Administrative Tribunal dated 18 March 2026 refusing a stay of the orders referred to above. These orders are stayed until the determination of the appeal to the Appeal Panel of the NSW Civil and Administrative Tribunal.

13. I make no order as to costs to the intent that each party bear its or her own costs.

14. The summons is otherwise dismissed.

15. I note that the plaintiff intends to approach the NSW Civil and Administrative Tribunal forthwith to endeavour to obtain a hearing date for the appeal sooner than 5 May 2026.

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