Mihalopoulos v NSW Land and Housing Corporation

1. 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.
2. The relevant factors to consider were identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]:

"(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30 at [1990] HCA 30; 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59]."

1. We do not consider this is a satisfactory explanation for the delay. The evidence does not indicate how the tenant's financial issues; the tenant's medical condition; his appeal of the strike notice; and efforts to obtain legal support prevented him from lodging the appeal in time. Nor do they provide a satisfactory explanation for the appeal being lodged over 70 days beyond the applicable time period under r 25(4)(b) of the NCAT Rules.
2. The tenant provided some medical evidence dealing with his motorcycle accident and his treatment.
3. The accident on 26 May 2025 occurred several days after the Notice of Appeal should have been lodged.
4. However, the documentation does not provide an adequate explanation or justification for the extensive delay in lodging the appeal (Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80).
5. The orders of 17 April 2025 were made by consent, and the landlord was entitled to consider the dispute finalised such that it was obliged to take measures to provide a rent credit and pay monies to the tenant in accordance with the consent orders Although the landlord has not identified any actual prejudice in the sense of any specific documents or materials relevant to the appeal that are now not available that would have been available had the appeal been filed within time, the period of the delay affects the landlord and is a matter relevant to the exercise of discretion.
6. For reasons set out subsequently in this decision, the grounds of appeal lack sufficient merit to invoke s 41 of the NCAT Act to extend the time period to lodge the appeal under r 25(4)(b) of the NCAT Rules.

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.
2. 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 _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].

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:

"(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];

1. An appeal under s 80(1) of the NCAT Act is not an opportunity for a dissatisfied party to rerun their case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). In this matter, the grounds of appeal do not warrant a new hearing under s 80(3) of the NCAT Act (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [29]- [31]). The appeal is conducted under s 80(1) of the NCAT Act.

1. The tenant did not dispute the orders of 17 April 2025 were made by consent.
2. Where proceedings settle, the Tribunal may make orders by consent. In Daley v Budget Auto Group Pty Ltd [2024] NSWCATAP 149, the Appeal Panel referred to a summary of the relevant principles in Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 at [80] and following:

1. In Yuen v Thom [2016] NSWCATAP 243 (Yuen) the Appeal Panel stated at [33]:

1. The Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252 (McDonald) at [56] and McLean v Bridge Housing Limited [2020] NSWCATAP 232 at [28] adopted the same definition of r 37 of NCAT Rules as Yuen at [33].
2. While the tenant may have adverse health conditions, we are not persuaded the medical documents submitted establish that the tenant is a "vulnerable person" in accordance with the definition in r 37 of the NCAT Rules, nor was there evidence to that effect before the Tribunal at first instance. The medical evidence did not establish the tenant was wholly or partially unable to represent himself in the Tribunal proceedings due to a disability.
3. The principles applicable to setting aside a consent order were outlined by the Appeal Panel in McDonald at [59]:

"A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]- [45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]- [54]. From those cases, the following principles can be discerned (omitting authorities):

1. Before the Appeal Panel, the tenant gave evidence that "I felt I was being shut down" by the Senior Member at the Tribunal hearing and "had to compromise." The tenant highlighted the Senior Member telling him "We've gotta move on".
2. Duress is limited to circumstances where there is threatened or actual unlawful conduct involving the person, or the person's commercial and financial interests: Turk v NSW Land and Housing Corporation [2019] NSWCATAP 207 at [56] - [59].
3. Taken at its highest, the transcript may indicate the tenant was dissatisfied with the outcome and felt that some issues remained unresolved. However, that is the nature of compromise. When read in its full context, the transcript makes clear that the Senior Member ascertained whether the tenant understood and agreed to the proposed consent orders before the orders were made.
4. We are not satisfied the tenant's medical or other issues amounted to 'a disabling condition or circumstance which seriously affected' his ability to exercise personal judgement in his own interests. It was not disputed that the tenant was accompanied by a tenant's advocate from a Tenants Advice and Advocacy Service at the Tribunal hearing as a "support person." That is verified by the transcript. The documents and submissions provided by the tenant in the appeal do not establish duress, unconscionable conduct, mistake or any of the vitiating matters identified in McDonald as a basis to set aside consent orders.
5. The tenant's grounds of appeal refer to a denial of procedural fairness and other matters that may be relevant if the hearing had proceeded and the Tribunal determined the dispute. However, the Tribunal made consent orders. There was no denial of procedural fairness in making the orders; or consideration of evidence; or consideration of failure to comply with previous orders of the Tribunal; or misapplication of s 52 of the RTA. As discussed previously, the salient issue is whether the consent orders are vitiated by one or more of the matters identified in McDonald.
6. No error on a question of law is established.
7. Further, there is no basis established for leave to appeal under the principles in Collins v Urban.
8. The decision to make the consent orders was legally orthodox and it is not established the tenant may have suffered a substantial miscarriage of justice due to the matters set out in cl 12(1) of sch 4 of the NCAT Act.

(2007) 71 NSWLR 61

(1998) 195 CLR 516

(1968) 118 CLR 186