Nguyen v Wessell

1. On 5 October 2023, the appellant, in her capacity as landlord, and the respondents, in their capacity as tenants, entered into a three month residential tenancy agreement ("the RTA") for a two bedroom house in Padstow, New South Wales ("the Premises"). The RTA was renewed on 10 January 2024 for 13 months and was due to expire on 7 February 2025.
2. The weekly rent commenced at $695.00 per week. There was a rental bond paid by the tenants in the sum of $2,780.00.
3. The tenancy was managed by a real estate agency until the agency agreement was terminated on 27 September 2024.
4. Over time, the landlord and the tenants became embroiled in disputes about a range of matters relating to the tenancy.
5. On 18 July 2024, the tenants filed an application in the Tribunal (proceedings 2024/00265237) against the landlord seeking orders under the Residential Tenancies Act (NSW) 2010 ("the Act"), including orders that they be allowed to break the RTA without penalty, that the rental bond be returned to them, and seeking compensation for claimed breaches of their entitlement to quiet enjoyment.
6. On 12 September 2024, the landlord filed an application in the Tribunal (proceedings 2024/00339519) seeking orders for access to the Premises, outstanding rent and electricity and water bills, and for compensation for various claimed breaches of the RTA.
7. On 25 September 2024, the landlord disconnected the electricity at the Premises.
8. On 26 September 2024 the Tribunal granted the tenants an urgent interim hearing. On 27 September 2024, the Tribunal ordered the landlord to restore the electricity to the Premises immediately and pay any outstanding bills.
9. On 30 September 2024, the landlord's application and the tenant's application came before the Tribunal for a ninety minute hearing. The parties' dispute was not resolved due to insufficient time. Interim orders were made that the weekly rent (which by now was $750.00 per week) was to be paid to the Tribunal from 1 October 2024, pursuant to s. 187(1)(f) of the Act, and orders were made for the landlord to comply with the RTA. The proceedings were listed for another full day of hearing.
10. On or about 9 November 2024, the tenants vacated the premises.
11. On 2 December 2024, the final hearing of the landlord's application and the tenants' application proceeded. The Tribunal's decision was reserved.
12. The landlord had also commenced other proceedings in the Tribunal against the tenants (proceedings 2024/400324) seeking termination of the RTA but by the time that application came before the Tribunal for hearing, the tenants had already vacated the Premises and the application was later dismissed. Those proceedings are not the subject of this appeal.
13. Following the hearing on 2 December 2024, the Tribunal published reasons and orders on 24 March 2025. The orders were amended on 10 April 2025.
14. Also on 24 March 2025, the landlord commenced proceedings 2025/00113780 against the tenants. This proceeding was listed for a conciliation and hearing on 14 April 2025. The Appeal Panel was not given any evidence from the landlord about what then happened in connexion with these proceedings.
15. On 14 April 2025, the landlord commenced another set of proceedings in the Tribunal (proceedings 2025/00144582) seeking against the tenants, amongst other things, payment of certain amounts for rent, water, electricity, cleaning costs and damages (in the sum of $15,000.00), plus the release of the rental bond to the landlord and "the final electricity charge."
16. (We pause here to note that, on our reading of the application of the proceedings filed by the landlord on 14 April 2025, the proceedings appear to have been an attempt by the landlord to challenge the Tribunal's orders that had been made in proceedings 2024/00339519 while also appearing to be a means to bring fresh evidence before the Tribunal.)
17. The landlord and the tenants were notified that a conciliation and hearing in the 2025/00144582 proceedings would take place on 1 May 2025.
18. The evidence before us does not indicate what orders, if any, were made on 1 May 2025 or indeed, whether or not any hearing took place on that day.
19. In the 2025/00144582 proceedings, on 28 May 2025, there was a hearing before the Tribunal, and the Tribunal record of what took place on that day (which was part of the landlord's material before the Appeal Panel) records that the landlord "was resistant to accepting that position [being the Tribunal's determination of the December 2024 hearing] and seeks a hearing date." The Tribunal (a general member) made orders on 28 May 2025 ordering the landlord to pay the tenants $162.75, ordering the bond be paid to the tenants in full and the release of monies held by the Tribunal to the landlord and an order dismissing "the balance of both applications."
20. The final hearing of the 2025/00144582 proceedings was then listed for 30 June 2025. The final hearing took place on that day.

The Tribunal's decisions which are the subject of these Appeal proceedings

1. As mentioned above, reasons for decision were published, and orders were made, with respect to the tenant's application in proceedings 2024/00265237 and the landlord's application in proceedings 2024/00339519, on 24 March 2025. The orders were later amended on 10 April 2025. The amendments were made pursuant to s. 63 of the NCAT Act and involved the spelling of the landlord's name in two orders and a correction to the name of one of the parties on the coversheet to the decision.
2. The orders the Tribunal made on 24 March 2025, as amended on 10 April 2025, were as follows:

(1) Rental Bond Services is directed to pay the tenants, April Bal and Michael Wessell, the full bond plus interest of rental bond number T674365-6.

(2) Order pursuant to s. 187(1)(d) of the Residential Tenancies Act 2010 (NSW) that Hong Nguyen is to pay April Bal and Michael Wessell the sum of $162.75 within 7 days.

(3) Monies held by the Tribunal in the sum of $4,714.28 are to be immediately released to the landlord, Hong Nguyen.

(4) Both applications are otherwise dismissed.

1. The Tribunal's decision is a detailed one, running for 283 paragraphs and 52 pages in length. The decision sets out, inter alia, the landlord's and the tenants' respective claims (at [11] - [14]), the evidence the parties relied upon (at [46] - [49]), the history of the various applications made in the Tribunal by the parties (at [28] - [35]), the factual background to the parties' disputes (at [15] - [27]) and the parties' submissions. The bulk of the decision (at [175] - [277]) is then taken up with the Tribunal member setting out the findings made by the Tribunal, including how relevant statutory provisions and clauses in the RTA were applied to resolve each of the various disputes between the parties. In the part of the decision devoted to findings, the member has, amongst other things, set out in detail the dates of utility bills, the amounts of each of them, and explained the reasons why the Member came to the conclusions she reached about the disputed utility bills. In the course of the reasoning the Member stated (at [246]): "I make the comment that many of these claims are retaliatory on both sides which has caused an escalation and exaggeration of claims". The decision ends with a summary of the orders made in favour of each party and then sets out the orders to be made.
2. It was common ground between the parties at the time of the Appeal Panel hearing (3 December 2025) that the tenants had received the rental bond in full and that the rent paid into the Tribunal had been released to the landlord. However, the landlord had not made the payment to the tenants which order 2 of the orders had required her to pay, and indeed, to pay within seven days.
3. At the Appeal Panel hearing, the Appeal Panel questioned the landlord why she had not complied with that order of the Tribunal. The landlord's explanation, as we understood it, was that she didn't believe she had to make the payment to the tenant because she believed the tenant owed her money. The Appeal Panel finds the landlord's explanation for her failure to comply with the order to be unsatisfactory and it is in no way an adequate explanation for the landlord's non-compliance with an order of the Tribunal.
4. As mentioned above, the landlord then commenced another set of proceedings in the Tribunal against the tenants, being proceedings 2025/00144582, which led to orders being made on 28 May 2025.
5. These 2025/00144582 proceedings were then listed for final hearing on 30 June 2025. On that date, the Tribunal orders were as follows:

(1) The application is dismissed because they are an abuse of process, being the subject of res judicata and issue estoppel arising from orders made by Tribunal Member Alder on 24 March 2025 in proceedings 2024/000339519 and 2024/00265237.

1. The orders also record "Oral reasons were given."
2. The landlord did not provide the Appeal Panel with a transcript of the hearing on 30 June 2025. The landlord failed to do so, notwithstanding that after the landlord filed her appeal on 14 July 2025, there was a directions hearing in the appeal proceedings, on 8 August 2025, where the Appeal Panel had made an order (order 2.(d)):

"The Appellant is to lodge with the Appeal Registry and give to the Respondent by 26 September 2025:

(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."

1. When the Appeal Panel questioned the landlord about why the transcript was not provided to the Appeal Panel, the landlord replied that she had "misplaced it". In any event, it is clear that the landlord, having obtained a copy of the transcript (the landlord's statement that she "misplaced" the transcript implies that the landlord had obtained the transcript), had not given it to the tenants by 26 September 2025, as required by the orders of 8 August 2025.

1. On 14 July 2025, the landlord filed a Notice of Appeal against the decision dated 30 June 2025 (in 2025/00144582) and against the decision in 2024/00339519 stated to have been received on 1 July 2024.
2. The Notice of Appeal includes an acknowledgment from the landlord that she needs an extension of time to bring her appeal: see section 7 of the Notice of Appeal. (We presume that the extension of time is sought by the landlord in regards to the Tribunal's decision in the 2024/00339519 proceedings, since the appeal was brought within time in relation to the 2025/00144582 proceedings as the landlord was notified of the 30 June 2025 decision on 1 July 2025). The reason given in the Notice of Appeal for why the appeal was not lodged in time refers to a hearing on 14 April 2025 which the landlord claimed she "was unable to attend due to accident causing me broken foot, despite my medical certificate attached and new evidence provided."
3. (We pause here to note that the Appeal Panel has been provided with material from the landlord to suggest that a hearing was going to take place on 14 April 2025 in proceedings 2025/00113780. Those proceedings are not the subject of this appeal. In the 2025/00144582 proceedings, the material before the Tribunal suggests that on 14 April 2025, notice was given by the Tribunal of the conciliation and hearing that would take place in those proceedings on 1 May 2025.)
4. The Notice of Appeal was accompanied by a three page annexure which we interpret as setting out the landlord's grounds of appeal. There appear to us to be five grounds of appeal set out in this annexure. The "grounds of appeal" are framed in broad and general terms. The first ground is headed "error of law in misapplication of bond rules", the second is "failure to consider critical evidence", the third is "misapplication of tenant behaviour and damages", the fourth is "procedural unfairness and lack of opportunity to present evidence" and the fifth is "factual error: incorrect assessment of the bond amount." Each "ground of appeal" is supported by a paragraph or so of additional text.
5. The Appeal Panel interprets what appear to be "grounds of appeal" 1, 2, 3 and 5 in the annexure which accompanied the Notice of Appeal, as directed to the Tribunal's decision in 2024/00339519, while ground 4 appears to us to be directed to proceedings 2025/00144582. The text supporting ground 4 proceeds: "NCAT denied my application for a stay of the order, despite my circumstances and the fact that I was unable to attend the hearing due to personal reasons. I was not given a fair opportunity to present all the necessary evidence, and my request for adjournment was unjustly dismissed. This lack of procedural fairness significantly impacted the outcome of the case."
6. After setting out what we interpret as "grounds of appeal" 1 - 5, the annexure records, under the heading "orders sought", a submission that the tenants owe the landlord $16,443.00 and the landlord wants the tenants to be required to pay the "outstanding amount" and "the bond retained" until the tenants' alleged debts are settled.
7. At the hearing before the Appeal Panel, the landlord during her oral presentation of her case, also made a submission complaining about how the Member conducted the hearing on 2 December 2024. At the Appeal Panel hearing, the landlord, for example, complained that she had been assaulted during the hearing, that the Member had failed to do anything about that, and made a substantive claim that the Member had given misleading legal advice to the landlord about the conduct of her dispute with the tenants, relating to the landlord bringing a subsequent, separate claim against the rental bond. We interpret this submission by the landlord as involving a ground of appeal that the 2 December 2024 hearing had been conducted by the Tribunal unfairly.
8. The landlord also filed with the Appeal registry two bundles of documents, one filed 26 September 2025 and one filed 21 November 2025. The bundles include the landlord's "statement of claim", the landlord's submissions, some of the evidence before the Tribunal at the trial stage (as we understand it), some records of the procedural history of proceedings 2025/00144582, a copy of the application in proceedings 2025/00113780 and a listing notice in that proceedings, and, as we understand it, some new evidence which the landlord wishes to bring before the Appeal Panel.
9. The new evidence includes utility bills and correspondence relating to utility bills that was not tendered before the Tribunal at the 2 December 2024 hearing. For example, there is a water bill issued on 6 February 2025, an electricity bill issued on 4 December 2024 and an email transmission from Energy Australia dated 27 June 2025 sent to the landlord. There is also material appearing to assert various maintenance works that were needed at the Premises after the tenants vacated the Premises.
10. At pages 7 - 8 in the September 2025 bundle of documents filed by the landlord there is a document which contains other grounds of appeal, being grounds of appeal recorded as 2.1, 2.2, 2.3 and 2.4 in the landlord's document, sought to be raised by the landlord.
11. The second (November 2025) bundle also includes what is stated to be a transcript of the hearing on 2 December 2024 in the 2024/000339519 and 2024/00265237 proceedings. The transcript the landlord has provided includes annotations made by her, featuring the landlord's commentary on "the member's unfair action". In addition, the version of the transcript provided by the landlord intersperses through the transcript a range of different formatting techniques, described in a note which accompanies the transcript as being 'bold highlight', 'italic bold in bracket', 'red underlined italic bold' and 'highlighted bold large font', each of which has a different meaning. For example, the use of 'bold highlight' is said to indicate an "error of law: important evidence that the member deliberately ignored." Some of the landlord's commentary includes material that involves personal, adverse imputations against the Member who conducted the 2 December 2024 hearing while some of the landlord's commentary is of a more substantive nature claiming that the Member gave misleading legal advice to the landlord during the hearing.
12. For their part, the tenants did not file any Reply to the Notice of Appeal. The tenants filed submissions and also filed an application for miscellaneous matters dated 26 November 2025 seeking summary dismissal of the appeal proceedings on the basis of res judicata and issue estoppel.

Consideration - extension of time to file appeal against the Tribunal's decision in proceedings 2024/00339519

1. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 ("the Rules") the Notice of Appeal should have been lodged ordinarily within 14 days of the landlord receiving the Tribunal's decision.
2. The Tribunal's decision in proceedings 2024/00339519 of 24 March 2025 was amended on 10 April 2025.
3. The landlord received, by email transmission, a copy of the Tribunal's decision on 24 March 2025: see p. 14 in the landlord's bundle of documents filed 26 September 2025.
4. It is not clear from the landlord's Notice of Appeal, or her material relied upon during the appeal, when she received the Tribunal's amended orders.
5. On 14 April 2025, the landlord had filed an application in the Tribunal, in proceedings 2025/00144582 and, as explained above, these proceedings seem to us to have been an attempt to challenge the Tribunal's orders in proceedings 2024/00339519 and also to introduce some new evidence which was not before the Tribunal at the 2 December 2024 hearing. Doing the best we can with the limited evidence that the landlord has made available to the Appeal Panel on this issue, we infer from the filing of the proceedings on 14 April 2025, as recorded in the preceding sentence of this paragraph of this decision, that it was on 13 April 2025 that the landlord is likely to have received the amended orders in proceedings 2024/00339519, allowing the landlord a day to review the amended orders, draft her new application and make arrangements to file it.
6. The Notice of Appeal was lodged on 14 July 2025.
7. The landlord has applied for an extension of time in section 7 of the Notice of Appeal form.
8. Section 41 of the Act provides:

"(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired."

1. The principles by which the power provided for in s. 41 of the Act should be exercised are well-established, and are recorded in the authorities such as Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] - [22], Gallo v Dawson [1990] HCA 30; 93 ALR 479 at [2] and Nanschild v Pratt [2011] NSWCA 85 at [39].
2. The starting point is that procedural rules of the Tribunal, such as Rule 25(4)(b), should be obeyed, just as the procedural rules of a court should be obeyed: Ratnam v Cumarasamy (1965) 1 WLR 8 at p. 12 cited with implicit approval in Gallo v Dawson, supra at [2] per McHugh J.
3. The burden of proof lies on the landlord, as the applicant for the extension of time, to establish that there are proper grounds to grant the application for the extension of time: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [80] per Basten JA.
4. The power to grant an extension must be exercised judicially, having regard to the "guiding principle" that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s. 36 of the NCAT Act and Jackson, supra at [18].
5. As explained in Jackson, supra at [22], generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider:

(1) The length of the delay;

(2) The reason for the delay;

(3) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(4) The extent of any prejudice suffered by the respondent to the appeal.

1. Applying those legal principles to the application before us:
2. First, legislated time limits which ordinarily apply to procedural steps that a litigant may take are not to be ignored. The length of delay in bringing the application for an extension of time in which to appeal here is significant. The application has been brought just over two and a half months out of time. That time is significant when measured against the 14 days provided for in cl 25(4)(b) of the Rules. The Tribunal is being asked to enlarge, by a period of just over two and a half months, the 14 day period provided for in cl 25(4)(b) of the Rules.
3. In our assessment, the length of the landlord's delay tells substantially against granting the extension of time sought.
4. Turning next to the reasons of the delay in lodging the Notice of Appeal, as noted above, in the Notice of Appeal, when setting out the reasons she sought an extension of time, the landlord drew attention to her inability to attend a hearing on 14 April 2025, due to an accident causing her a broken foot. That hearing appears to have been in proceedings 2025/00113780 which is not the subject of this appeal. When questioned by the Appeal Panel at the appeal hearing about the reasons for the delay in filing her Notice of Appeal, the landlord again referred to her having had a broken foot.
5. The Appeal Panel accepts that on 14 April 2025, the landlord had a broken foot. However, the landlord provided no evidence to the Appeal Panel about the nature, duration and extent of the broken foot injury. There was no evidence explaining how or why the broken foot may have impacted on the landlord's ability to file her Notice of Appeal. There was no evidence linking the broken foot to any work on the Notice of Appeal that the landlord was doing, or planning to do, in, say, May or June 2025 or the first fortnight of July 2025. The landlord was apparently active, on 28 May 2025, in proceedings 2025/00144582, in prosecuting a hearing that was dealt with by a general member of the Tribunal on that day.
6. In our assessment of the evidence the landlord has brought before us, the landlord has not provided an adequate explanation of her delay in lodging the Notice of Appeal against the amended orders in 2024/00339519. The lack of material providing an adequate explanation of the delay weighs substantially against granting an extension of time: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [103].
7. Thirdly, as to the extent of any prejudice suffered by the tenants, there is in our assessment, material prejudice to the tenants that goes beyond the inconvenience of them having to prepare for and appear at the appeal, were an extension of time to be granted to the landlord to bring her appeal.
8. As part of the landlord's appeal, she wishes to tender new evidence ("grounds of appeal" one and two, in the annexure to the Notice of Appeal, refer to 'final utility bills' and the 'final electricity bill' said to show "the outstanding amount owed by the tenants"). The bundles of documents filed by the landlord as part of her appeal also include, as noted above, other material asserting maintenance works needed at the Premises after the tenants vacated the Premises. It was on or about 9 November 2024 that the tenants vacated the Premises. The first respondent now lives in regional New South Wales. It seems to us that the respondents, who had been away from the Premises for over 12 months at the time of the Appeal Panel hearing, would be at a real disadvantage were the appeal to proceed and were the landlord to be granted leave to rely upon fresh evidence, in the respondents being able fairly to meet claims from the landlord about 'final utility bills'. The respondents would not be likely to know anything about circumstances surrounding the use of services at the Premises or the state of the Premises after they vacated them. The landlord's delay in bringing the appeal, coupled with the new evidence that the landlord wishes to tender as part of the appeal, mean that the tenants would face practical challenges and difficulties in being able to test the new evidence on which the landlord seeks to rely, or in obtaining their own evidence to gainsay the landlord's evidence.
9. Granting the extension of time sought by the landlord would not therefore, facilitate the just resolution of the real issues in the proceedings.
10. Further, the tenants have already been called upon to answer at hearings the landlord's claim on the bond and for damages, not only on 30 September 2024 and 2 December 2024, in the course of proceedings 2024/00339519, but also in proceedings 2025/00144582, on 28 May 2025 and on 30 June 2025, as the application in these proceedings, on its face, portended. There is substantial prejudice to the tenants in having to face a multiplicity of hearings all dealing with the same, or at least substantially overlapping, issues. This prejudice is an especially prominent factor here given the landlord's appeal explicitly seeks to rely on new evidence and re-calculate the debt she asserts the tenants owe her (see for example the statement of claim at p. 2- 3 in her bundle of documents filed on 21 November 2025). Before the appeal proceedings were instituted by her, the landlord has had multiple opportunities to have the merits of her claims considered and dealt with by the Tribunal.
11. The strain and stress on personal litigants like the respondents, that litigation involves, is a factor that may be taken into account when considering procedural applications: see the High Court's decision in Aon, supra. Given the extensive history of multiple Tribunal proceedings between the landlord and the tenants, dealing with the same or substantially overlapping issues, and given the time that has elapsed since the end of the landlord/tenant relationship between the parties to this appeal, it seems to us that were the application for an extension of time to be granted, this would entail additional strain and stress for the respondents, in circumstances where the landlord has already had a sufficient opportunity to have her dispute with the tenants dealt with on the merits. The strain and stress on the respondents of an appeal proceeding where the landlord wishes to have the debt she asserts is owed to her re-calculated and then claimed against the tenants, is likely to be considerable and involves, in our assessment, material prejudice to the tenants.
12. Granting the extension of time sought by the landlord would not therefore, facilitate the quick and cheap resolution of the real issues in the proceedings.
13. The prejudice that the respondents are likely to suffer weighs against granting an extension of time to file the Notice of Appeal.
14. Further or alternatively, there is an additional factor at play in this case which militates against the grant of an extension of time to bring the appeal. The landlord was ordered on 24 March 2025 (see order 2), as amended in April 2025, to make a payment to the respondents within seven days. She has not done so and as mentioned above, the Appeal Panel did not find her explanation for non-compliance to have any justification. The failure by the landlord to abide by a Tribunal order is a serious matter. Parties to proceedings before the Tribunal are obliged to comply with orders of the Tribunal: s. 36(3) of the NCAT Act.
15. When applying s. 36 of the NCAT Act to the matter before us, it is our view that it would not facilitate the just resolution of the real issues in the proceedings, to grant the landlord the extension of time she seeks, against the background of the landlord's non-compliance with order 2 made on 24 March 2025. It would not be a proper use of the Tribunal's powers to grant and extension of time, and would not facilitate the just resolution of the landlord and the tenants' dispute, because it seems to us that it would be unfair to the respondents, and would also undermine public confidence, in the system for the resolution of disputes administered by the Tribunal, among right-thinking people (Walton v Gardiner (1993) 177 CLR 378 at 393), were one party to be permitted to ignore final orders of the Tribunal that had been made against it, but then be permitted an extension of time to bring an appeal, in the hope that it can then obtain orders against the other parties, in the expectation that the other parties will, unlike it, comply with Tribunal final orders.
16. We turn next to consider the landlord's prospects on the appeal.
17. The significance of the applicant having a fairly arguable case may be lessened where there is no reasonable explanation for the delay in complying with the relevant, ordinarily-applicable procedural requirements (and there is no such explanation here, for the reasons explained above) and where there is here (for the reasons explained above) a strong case of prejudice for the respondents were the extension of time to be granted.
18. In considering the landlord's grounds of appeal, we assess the merits of the grounds of appeal in the manner explained by the High Court of Australia in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [7] - [9].
19. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s. 80 of the NCAT Act. Section 80 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' (s. 80(2)(b) of the NCAT Act). Where an appeal is not available as of right, the Appeal Panel must be satisfied that the requirements set out in cl 12 sch 4 of the NCAT Act are established before granting leave to appeal.
20. 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]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 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 [Shire Council v Styles [2024] NSWCATAP 104] 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 (CCD) pursuant to s. 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. Where a party is a self-represented, non-legally trained appellant, the grounds of appeal may be considered generally by the Appeal Panel (subject to procedural fairness considerations) to determine whether a question of law has been raised: Simjanovska v Dogan [2023] NSWCATAP 69 at [78]; Prendergast at [12].
2. The landlord's grounds of appeal, in the case of the Tribunal's decision following the 2 December 2024 hearing, which was, as mentioned above, a detailed decision, framed as the grounds have been in a broad and generalised way, do not assist the Appeal Panel to identify any particular finding, or particular aspect of the Tribunal's approach to its task, as being attended by error.
3. The landlord's Notice of Appeal, and the "grounds of appeal" 1 and 2, set out in the annexure to the Notice of Appeal appear to us to involve a generalised attack on the Tribunal's method of calculating asserted "unpaid" rent, electricity, water bills and "property damage" (ground 1) and a generalised, unspecific challenge to how the Tribunal assessed the evidence before it (ground 2).
4. Grounds of appeal 1 and 2 from the landlord do not raise any fairly arguable case that there was an error of law by the Tribunal but in our view involve only a broad, unspecific challenge to the merits of the Tribunal's decision. We also do not regard grounds 1 and 2 as involving any fairly arguable case for the Appeal Panel to grant leave to appeal to the landlord.
5. Ground of appeal 3 makes assertions about the tenants' behaviour, unconnected to evidence, and assertions about how the asserted breaches impacted on the landlord's "financial position and the condition of the property." Again, this ground does not raise any fairly arguable case that there was an error of law by the Tribunal but in our view involves only a broad, unspecific challenge to the merits of the Tribunal's decision. It also seems to depend on evidence about issues such as the landlord's "financial position" which were not the subject of evidence before the Appeal Panel. We also do not regard ground of appeal 3 as involving any fairly arguable case for the Appeal Panel to grant leave to appeal to the landlord.
6. Ground of appeal 4, as explained above, appears to relate to proceedings 2025/00144582 and does not seem relevant to the decision and orders in 2024/00339519.
7. Ground of appeal 5 refers to "incorrect facts" and "misinformation" from the tenants that "was not properly scrutinised by NCAT, and as a result, the bond was released to the tenants unjustly." Again, this ground does not raise any fairly arguable case that there was an error by the Tribunal but in our view involves only a broad, unspecific challenge to the merits of the Tribunal's decision. We also do not regard ground 5 as involving any fairly arguable case for the Appeal Panel to grant leave to appeal to the landlord.
8. A theme of the landlord's appeal submissions and appeal documents, in our assessment of her written material and oral submissions, is that she wants the Appeal Panel to determine the "debt" she says the tenants owe her and then somehow make an order that the bond "be retained" until the alleged debt is repaid. However, an appeal is not an opportunity for the losing party to rerun their case, except in narrow circumstances, none of which are relevant for present purposes: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. By approaching the appeal in the manner in which she has, the landlord has not been able to focus submissions on some particular finding of the Tribunal, or aspect of its approach, that may be attended by error.
9. As mentioned above too, the material filed by the landlord on 26 September 2025 as part of the Appeal proceedings also included additional grounds of appeal, being matters 2.1, 2.2, 2.3 and 2.4 at pp. 7 - 8 in this material. The basis for the landlord providing these additional grounds of appeal is unclear. The directions made on 8 August 2025 as part of the Appeal proceedings did not give the landlord leave to amend her Notice of Appeal and raise additional grounds of appeal. In any event, these additional grounds of appeal are all framed at a high level of generality, feature bald assertions and do not engage with the actual, specific reasoning of the Tribunal in the decision under appeal, for example:

(1) Ground 2.1, first bullet-point asserts "NCAT failed to apply relevant provisions relating to rent arrears, termination, and utility payments (including Sections 88, 100, 106 and 107)";

(2) Ground 2.2, first bullet-point asserts "NCAT ignored evidence of tenant breaches, including refusal of access for urgent storm damage repairs over months (30/4/25 to 9/11/24), harassment of landlord and agent, and intentional damage to the property".

1. We have considered each of the additional grounds of appeal mentioned by the landlord in her 26 September 2025 document and have formed the view that the asserted grounds do not establish a fairly arguable case that there was an error of law by the Tribunal or any fairly arguable basis for leave to appeal to be granted to the landlord.
2. As for the ground of appeal that the landlord advanced orally during the Appeal Panel hearing, complaining about the alleged "unfairness" of the manner in which the Tribunal conducted the hearing on 2 December 2024, the basis for the landlord to bring this ground of appeal before the Appeal Panel is unclear, as the directions made on 8 August 2025 as part of the Appeal proceedings did not give the landlord leave to amend her Notice of Appeal by adding additional grounds.
3. In any event, we have reviewed the transcript which the landlord provided of the 2 December 2024 hearing. In doing so, we have ignored all of the annotations added by the landlord into the transcript. We are satisfied that the Tribunal gave the landlord an adequate opportunity to put on her case at the hearing and that the hearing was conducted fairly. We are also not satisfied that the Tribunal gave the landlord misleading legal advice about the conduct of her dispute with the tenants, relating to the landlord bringing a subsequent, separate claim against the rental bond. The remarks of the Tribunal at the 2 December 2024 hearing, in respect of which the landlord complained to the Appeal Panel, when viewed in their proper context, seem to us to have been directed to the circumstance that the landlord was saying to the Tribunal that there was additional evidence that she had not obtained yet, and the Member was making the point, in response, that none of that evidence was before her, such that if the landlord wanted to make a claim based on additional evidence and new documents, then the landlord would need to bring a fresh claim in a separate proceeding: see pp. 10 - 11 of landlord's 21 November 2025 bundle filed in the Appeal proceedings. When viewed in their proper context, we do not see anything improper in the Member's remarks to the landlord during the hearing.
4. As to the landlord's submissions about how the 2 December 2024 hearing was conducted unfairly, we do not accept the landlord's submission; and we have formed the view that the asserted grounds do not establish a fairly arguable case that there was an error of law by the Tribunal or any fairly arguable basis for leave to appeal to be granted to the landlord.
5. Accordingly, it appears to the Appeal Panel that the landlord has little if any prospect of establishing either an error on a question of law in the Tribunal's decision or any proper basis for leave to appeal to be granted to her. The limited prospect of success weighs substantially against granting an extension of time to file the Notice of Appeal.
6. In our view, in conclusion, the landlord has not established a persuasive basis for the Appeal Panel to exercise its discretion under s. 41 of the NCAT Act to allow an extension of the period of time for the Notice of Appeal to be filed.
7. For these reasons, the Appeal Panel is not prepared to grant the landlord an extension of time to appeal. Consequently, the question of leave to appeal does not arise. The appeal itself should be dismissed, being brought out of time and where no extension of time to bring the appeal has been granted by us.

Consideration - appeal against the decision and orders made in proceedings 2025/00144582

1. The appeal by the landlord against the Tribunal's decision dated 30 June 2025 was brought in time, as the landlord received the decision on 1 July 2025 and filed the Notice of Appeal within the 14 day time period: cl 25(4)(b) of the Rules.
2. As to the substance of the appeal, the landlord only provided the Appeal Panel with evidence, in connection with what happened in proceedings 2025/00144582 on 30 June 2025, that:

(1) her application was dismissed on 30 June 2025 as an abuse of process, being the subject of res judicata and issue estoppel arising from orders made by Tribunal Member Alder on 24 March 2025, and

(2) oral reasons were given for the decision.

1. There is something curious about what happened in proceedings 2025/00144582 on 28 May 2025, and the basis for making the orders that were made on 28 May 2025. However, the evidence which the landlord has supplied to the Appeal Panel about the decision on 30 June 2025 means that it is not possible for the Appeal Panel to assess whether anything that happened on 28 May 2025 may have led to, or caused, an error in the 30 June 2025 decision. Indeed, the landlord's evidence about the Tribunal's orders on 30 June 2025 expressly point to the Tribunal's decision on 24 March 2025 as being the basis of the dismissal of the 2025/00144582 proceedings, and the 30 June 2025 orders do not suggest that the Tribunal was influenced in any way by the 28 May 2025 decision and orders.
2. While "ground of appeal" 4 in the annexure to the Notice of Appeal makes a "procedural unfairness" complaint, it seems to us, about proceedings 2025/00144582, the meaning of the complaint is unclear. It is not clear what "necessary evidence" was not presented by the landlord and why she was not given "a fair opportunity" to present the "necessary evidence" and when and why any "adjournment request" was "unfairly" refused. It may be a complaint directed at the conciliation hearing that had been allocated for 1 May 2025 or it may be directed at what happened in these proceedings on 28 May 2025, or it may be directed at what happened on 30 June 2025 decision. The landlord's evidence before us provides no garment to clothe the claim, made as part of this ground of appeal, that the landlord lacked the fair opportunity to present all necessary evidence and that her adjournment request was "unjustly dismissed."
3. In circumstances where the landlord has not provided the Appeal Panel with a transcript of the oral reasons given by the Tribunal on 30 June 2025, there is nothing before the Appeal Panel to provide any proper basis for the Appeal Panel to find that the Tribunal made any error of law in dismissing the landlord's application on 30 June 2025. There is nothing before the Appeal Panel to suggest that the landlord should be given leave to appeal against the 30 June 2025 decision.
4. The appeal should be dismissed.

The respondents' application for miscellaneous matters

1. As we have decided to dismiss the appeals brought by the landlord against both Tribunal proceedings appealed against by the landlord, the respondents' application for miscellaneous matters dated 26 November 2025 becomes otiose and the merits of the application need not be considered. We will make an order dismissing the application.

(1) The application for an extension of time in which to appeal against the decision in Tribunal proceedings 2024/00339519 is dismissed.

(2) The appeal against the decision in Tribunal proceedings 2024/00339519 is dismissed.

(3) The appeal against the decision in Tribunal proceedings 2025/00144582 is dismissed.

(4) The respondents' application for miscellaneous matters dated 26 November 2025 is dismissed.

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.