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[2026] NSWCATAP 226
General information, not legal advice.
NCAT Appeal Panel
2026-07-21
G Sarginson, Deputy President
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Oliveira v Langting Property Pty Ltd [2026] NSWCATAP 226
Hearing dates: 14 July 2026
Date of orders: 21 July 2026
Decision date: 21 July 2026
Jurisdiction: Appeal Panel
Before: G Sarginson, Deputy President
Decision: (1) The application to extend time to lodge the appeal is refused.
(2) Leave to appeal refused.
(3) Appeal dismissed.
(4) Stay orders of the Appeal Panel dated 3 June 2026 are lifted immediately.
(5) Order 4 of the Tribunal dated 7 April 2026 in Case Number 2025/00479307 is varied such that the order for possession is suspended until 12 August 2026.
Catchwords: APPEALS - Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination for non-payment of rent – whether mandatory statutory considerations were considered – compensation for damage to garage door of strata building – whether garage door part of residential premises under the residential tenancy agreement
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Regulation 2022 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)
Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Chatterjee v Pandya [2024] NSWCATAP 85
Collins v Urban [2014] NSWCATAP 17
Donohoe v Alburario [2025] NSWSC 9
Hall v Hawkins [2015] NSWCATAP 197
Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154
Kelly v NSW Land and Housing Corporation [2026] NSWCATAP 214
King v NSW Land and Housing Corporation [2022] NSWCATAP 165
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14
Lin v Westerman [2025] NSWCATAP 319
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Nayar v Uren [2024] NSWCATAP 47
Nobrega v Chavez [2025] NSWCATAP 246
Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Ros v Commissioner of Police [2020] NSWCATAP 70
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Sharma v Hoque [2026] NSWCATAP 198
TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178
Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
Yuen v Thom [2016] NSWCATAP 243
Texts Cited: None cited
Category: Principal judgment
Parties: Fagner De Almeida Oliveira (Appellant)
Langting Property Pty Ltd (Respondent)
Representation: Appellant (Self Represented)
S Fayed (Respondent)
File Number(s): 2026/00200735
Publication restriction: Nil
In this decision, the appellant is referred to as “the tenant” and the respondent is referred to as “the landlord.”
The tenant appeals from two decisions of the Tribunal dated 7 April 2026.
The decision in Case Number 2025/00479307 was to terminate the tenancy by reason of non-payment of rent, with an finding made that the tenant had frequently failed to pay rent under s 89(5) of the Residential Tenancies Act 2010 (NSW) (RT Act). The date of vacant possession was suspended to 15 April 2026 under s 114 of the RT Act.
The second decision in Case Number 2026/00105177, also on 7 April 2026, involved damage caused by the tenant’s vehicle to the garage door of the strata building when entering the building car park. The Tribunal ordered the tenant pay the landlord $8,334.50 for the cost of replacing the garage door and associated costs.
The tenant did not appear at the Tribunal on 7 April 2026. The hearing of both applications was conducted ex parte. Mr Fayed, the agent of the landlord, appeared on behalf of the landlord at the Tribunal.
The Tribunal Member gave short written reasons in both matters.
The parties entered into a written residential tenancy agreement on 29 August 2024. At all relevant times, the rent has been $895 per week, payable on the Wednesday of each week. The residence is a unit in a strata scheme building. The written residential tenancy agreement states that the residential premises includes access to one carparking space in the carpark of the building.
Clause 6 of Addendum A of the written residential tenancy agreement contains a term that there is to be “no damage to car park gates”.
The written residential tenancy agreement states that both parties agree to the service of notices and documents electronically.
On 18 November 2025, the landlord issued a notice to terminate for non-payment of rent, with a date of vacant possession in the notice of 3 December 2025. The notice states it was served by email.
On 10 December 2025, the landlord commenced Tribunal proceedings in Case Number 2025/00479307 seeking an order that the Tribunal terminate the residential tenancy agreement due to non-payment of rent, and that the tenant had a “constant rent arrears exceeding 15 days”. There had previously been Tribunal orders on 24 February 2025 terminating the tenancy for non-payment of rent with rent arrears of $5,620, but no s 89(5) RT Act finding had been made and the tenancy had remained on foot.
On 15 January 2026, the matter was listed before the Tribunal. The Tribunal made consent orders that the tenant pay rent arears of $2,812.92 by 16 January 2026; and pay rent of $895 per week in accordance with the terms of the residential tenancy agreement. The orders allowed the landlord to request that the matter be re-listed before the Tribunal, with any such request to be made on or before 15 April 2026, if the tenant did not comply with the orders.
On 23 February 2026, the landlord’s agent requested the proceedings be re-listed before the Tribunal as the tenant had failed to comply with the consent orders of 15 January 2026.
The landlord’s re-listed application to terminate the tenancy was listed before the Tribunal on 7 April 2026.
In separate proceedings commenced in about March 2026 in Case Number 2026/00105177, the landlord sought damages for the cost of replacing the garage door of the strata building, alleging that the tenant had caused damage to it. Under s 51(3)(d) of the RT Act, a tenant cannot intentionally or negligently cause or permit any damage to the residential premises, and such a term is implied into all residential tenancy agreements even if there is not an express term of the written agreement. As discussed previously, there was also a term of the agreement that the tenant not damage “car park gates.” Under s 187(1)(d) of the RT Act, the Tribunal has the power to award compensation to a landlord for a tenant’s breach of the residential tenancy agreement.
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
An appeal under s 80(1) of the NCAT Act from a final Tribunal decision is focussed upon whether the appellant has established an error on a question of law; or otherwise (if leave to appeal is sought) leave to appeal is granted based upon the evidence and submissions before the Tribunal and the manner in which the Tribunal hearing was conducted. In certain circumstances, fresh or further evidence can be admitted (Ros v Commissioner of Police [2020] NSWCATAP 70 at [29]-[43]).
An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]). An error on a question of law (is an appeal made as of right and does not require leave. A mixed error of fact and law requires leave to appeal.
In Cusumano at [33], the Appeal Panel stated the categories of questions of law are ”not closed”; and at [37] stated:
“[37] 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) 118 CLR 186 at 194; [1968] HCA 51.”
It is unnecessary for the purpose of this decision to set out all the examples of an error on a question of law that were discussed in Cusumano.
However, an error on a question of law may arise in the circumstances including the following:
Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]-[39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J));
No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (Hayne J));
A constructive failure to exercise jurisdiction, in the sense of a failure to consider a ”substantial, clearly articulated argument relying upon established facts” that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).
Applying the wrong legal principle (identified in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]-[43] and the authorities cited therein).
Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]–[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1)(a)-(c) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(a) The decision of the Tribunal under appeal was not fair and equitable; or (b) The decision of the Tribunal under appeal was against the weight of evidence; or (c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
“… 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.”
Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited therein).
The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has 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, it would be in the interests of justice for it to be reviewed.
The grounds of appeal raise two issues:
In respect of the termination orders, failure to take into account mandatory considerations under s 87C of the RT Act, begin the tenant’s personal circumstances;
In respect of the compensation orders, that the Tribunal did not have jurisdiction under the RT Act as the garage door was not part of the residential premises under the residential tenancy agreement.
However, at the appeal hearing, the tenant stated that he did not draft the grounds of appeal, and they were drafted on his behalf. The tenant sought to raise fresh matters that went to the merits of the disputed matters. The tenant asserted that he was not two weeks in rent arrears at any relevant time and was no longer in rent arrears. The tenant acknowledged a period of time when he was unemployed affected his rent arrears, but stated he was now employed. The tenant asserted that he was up to date with rent.
The tenant also stated that there was a short period the tenant did not pay rent, but the reason was that the landlord or landlord’s agent had removed his tools without consent. However, according to the tenant, the issue of rent arrears had been addressed.
The Notice of Appeal states the tenant is not seeking leave to appeal. However, considering the tenant is self-represented, the Tribunal needs to consider the appeal grounds raised in substance, subject to procedural fairness considerations and avoiding the Appeal Panel creating, of its own volition, a new appeal ground that has not been raised in substance.
It is appropriate in this matter to consider whether any error on a question of law or any leave ground has been established based upon the substance of the grounds identified in the appeal, as well as the issue of whether an extension of time to lodge the appeal under s 41 of the NCAT Act should be granted.
On the issue of the garage door, the tenant stated that he had damaged the door driving in his vehicle. However, he disputed that the door needed to be replaced. According to the tenant, the door was repaired within a day or two and was operational.
I raised with the tenant that, under s 81(1)(b) of the NCAT Act, if the appeal was dismissed, I had the power to vary the date of vacant possession in the orders under appeal (see, for example, Kelly v NSW Land and Housing Corporation [2026] NSWCATAP 214). I asked the tenant if I ultimately determined it appropriate to exercise that power, what further period of time would be appropriate for the tenant to vacate the premises.
The tenant responded by stating that he was a single father with a 5 year old disabled child. He employs “babysitter” when he is at work and the child needs to be cared for. The tenant was adamant that he should not have to vacate the property because it would cause hardship to his son, in circumstances where his son was settled and close to schools and other facilities.
“The Appellant has a 5 year old son diagnosed with (condition). His son was unwell on 7 April 2026 and the Appellant was unable to attend the hearing. He incorrectly believed that he matters would be determined later on 23 April 2026 as he received a Notice of Hearing for that date…The Appellant then unsuccessfully sought a set aside of the termination decision, which was dismissed on 1 May 2026.”
The documents provide at the appeal hearing on 14 July 2026 were the following:
A series of screenshots of the tenant’s mobile phone in the period from 1 March 2026 to 11 July 2026 with bank transfer details for rent paid to the landlord’s agent.
Photographs and screenshots of the tenant’s phone with text messages in respect of the damage to the garage door dated 6 February 2026. The tenant asserted the door was repaired on the day of the accident.
Screenshots of the tenant’s phone referring the tenant complaining that the landlord or agent had removed belongings of the tenant (“expensive tools”) and the tenant was not going to pay rent until the tools were returned.
Photographs of the interior of the unit. The photographs are not materially different to the photographs in the landlord’s periodic inspection report in March 2026.
Text messages and emails in respect of access to check a smoke alarm. The tenant asserted that the landlord did not have permission to access the premises.
The Appeal Panel has the power to consider new evidence in an appeal (relevantly, documentary materials that were not before the Tribunal Member) under s 80(1) of the NCAT Act if it is in the interests of justice to do so (Ros v Commissioner of Police [2020] NSWCATAP 70 at [31]-[32] adopting Yuen v Thom [2016] NSWCATAP 243 and Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14; McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [39]).
In this matter, the grounds of appeal do not warrant a fresh hearing under s 80(3) of the NCAT Act.
The appeal is brought under s 80(1) of the NCAT Act, and involves conducting a rehearing on the materials before the Tribunal at first instance to determine whether the decision under appeal is the result of some legal, factual or discretionary error (Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220 at [35]).
However, the consideration of fresh or new documents that were not before the Tribunal at first instance is not the end of the enquiry. They must be relevant to establishing an error on a question of law in the decision based on the grounds of appeal; or that leave to appeal should be granted, for reasons that relevantly involve significant new evidence that was not reasonably available at the hearing under cl. 12(1)(c) of sch. 4 of the NCAT Act. The mere fact that evidence is “new” does not mean it is “significant” or “not reasonably available” to the tenant as at the date of the Tribunal hearing, such that it establishes that an appellant may have suffered a substantial miscarriage of justice (Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121 at [81]-[87]).
Under s 81(3) of the RT Act, a residential tenancy agreement terminates if the Tribunal makes a termination order. Under s 114(1) of the RT Act, the date of vacant possession may be suspended, noting that under s 83(1) of the RT Act the Tribunal must make an order for possession if it terminates the tenancy. There is no issue in this appeal that the landlord’s notice to terminate dated 18 November 2025 was invalid, or Tribunal proceedings had not been commenced within the applicable time period (ss 83(2); 88(4) of the RT Act and Reg. 39(2) of the Residential Tenancies Regulation 2019 (NSW).
Under ss 82 and 87C(1) of the RT Act, a landlord may serve (in a manner according with s 223 of the RT Act) a termination notice if the tenant is in breach of the residential tenancy agreement. The termination notice must specify a termination date or earlier than 14 days after the date on which the notice is given (s 87C(2)).
Sections 87C; 88; and 89 of the RT Act state:
87C Breach of tenancy agreement
(1) A landlord may give a termination notice on the ground the tenant has breached the residential tenancy agreement.
(2) The termination date must be at least 14 days after the termination notice is given.
Note—
The termination date may be before the end of the fixed term for a fixed term tenancy agreement.
(3) The Tribunal may, on application by the landlord, make a termination order in relation to a termination notice given under this section if the Tribunal is satisfied—
(a) the tenant has breached the residential tenancy agreement, and
(b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
(c) the termination notice was given in accordance with this section, and
(d) the tenant has not vacated the premises as required by the notice.
(4) In considering the circumstances of the case, the Tribunal may consider the following—
(a) the nature of the breach,
(b) previous breaches,
(c) steps taken by the tenant to remedy the breach,
(d) steps taken by the landlord about the breach,
(e) the previous history of the tenancy,
(f) another matter the Tribunal considers relevant.
(5) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
(6) Section 89(2) and 89A do not apply to a termination notice given under this section.
Note—
Section 154E sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.
88 Termination notices for non-payment of rent or charges
(1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay—
(a) rent, or
(b) water usage charges, or
(c) charges for the supply of electricity, gas or oil (utility charges),
payable by the tenant (a non-payment termination notice) has no effect unless the rent has, or the water usage charges or utility charges have, remained unpaid in breach of the agreement for not less than 14 days before the non-payment termination notice is given.
(2) A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord’s agent to make a prior formal demand for payment of the rent, water usage charges or utility charges.
(3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent, water usage charges or utility charges on time.
(4) Despite any other provision of this Part, a landlord may apply to the Tribunal for a termination order before the termination date specified in a non-payment termination notice. The Tribunal must not consider any such application until after the termination date.
89 Repayment of rent and charges owing following issue of non-payment termination notice
(1) This section applies if a landlord gives a tenant a non-payment termination notice.
(2) The Tribunal must not make a termination order on the ground set out in the notice if the tenant pays all the rent, water usage charges or charges for the supply of electricity, gas or oil (utility charges) owing or enters into, and fully complies with, a repayment plan agreed with the landlord.
(3) A termination of the residential tenancy agreement solely on the ground of non-payment of rent, water usage charges or utility charges, and any warrant for possession issued as a result of any order for possession, cease to have effect if the tenant pays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord and the tenant has not vacated the residential premises.
(4) If a tenant repays all the rent, water usage charges or utility charges owing or enters into, and fully complies with, a repayment plan agreed with the landlord, the landlord must notify—
(a) the Tribunal, if the landlord has applied to the Tribunal for a termination order on the ground of non-payment of rent, water usage charges or utility charges and the application has not been finally dealt with, or
(b) the Sheriff, if a termination order has been made and a warrant for possession of the residential premises has been issued but has not been enforced by the Sheriff.
Maximum penalty—20 penalty units.
(5) The Tribunal may, on application by a landlord, make a termination order despite subsection (2) or (3) if it is satisfied that the tenant has frequently failed to pay either or both of the following amounts owing to the landlord for the residential premises—
(a) rent, on or before the day set out in the residential tenancy agreement,
(b) water usage charges in accordance with section 39.
(5A) The Tribunal may make a termination order under subsection (5) on the grounds set out in subsection (5)(b) only if the landlord has, on each relevant occasion, requested payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority.
(6) If the Tribunal makes a termination order as referred to in subsection (5), a warrant for possession may be issued as a result of that order, even if the tenant has paid all rent, water usage charges or utility charges owing or complied with a repayment plan.
In this matter, the landlord’s tenancy ledger provided that the tenant was more than 14 days in rent arrears when the Notice of Termination was served. The tenancy ledger, and the consent orders of the Tribunal dated 15 January 2026, demonstrate rent arrears of $2.812.92 as of 15 January 2026.
The orders of the Tribunal on 15 January 2026 allowed the landlord to re-list the proceedings within a certain time period if the tenant did not comply with the orders of 15 January 2026. The Tribunal has the power to grant a re-list of proceedings under s 188 of the RT Act. The matter could be re-listed if the tenant failed to comply with the orders of 15 January 2026. That not only related to payment of the rent arrears, but continuing to pay rent in accordance with the terms of the residential tenancy agreement. Late payments or payments for an amount less than $895 on the due date each week constitute failure to comply with the orders that allowed the landlord to re-list the application and seek a termination order. The rent ledger of the landlord contains evidence of non-compliance with the Tribunal orders sufficient invoke the landlord’s right to re-list the termination application pursuant to the re-list orders that had been made under s 188 of the RT Act.
There is no information or material before the Appeal Panel to demonstrate that the Tribunal did not have the power to make the orders sought. There was evidence the tenant was in breach of the agreement. The reasons, although economical, do not indicate the Tribunal Member failed to consider “all the circumstances of the case” where the landlord was clearly arguing that the breach of the agreement and the failure to comply with previous orders of the Tribunal were sufficient to justify termination of the tenancy.
The tenant did not attend the Tribunal to provide any evidence or argument that the breach, in all the circumstances, was not sufficient to terminate the tenancy. The Tribunal Member could only determine the landlord’s application on the basis of the evidence and documents before the Tribunal. It is not inconsistent with the usual practice of the Tribunal to determine an application by a landlord to terminate a residential tenancy agreement involving a private tenancy at a Conciliation and Group List hearing (i.e. when the application is listed on the first occasion before the Tribunal, or listed again by way of a re-list): Chatterjee v Pandya [2024] NSWCATAP 85 (Pandya) at [83]. In Pandya, the comments were made in respect of applications involving the (now repealed) s 85 of the RT Act, but the comments at [83] also apply to termination for non-payment of rent.
The finding that the tenant had frequently failed to pay rent under s 89(5) of the RT Act was open to the Tribunal on the documentary material before it.
The tenant’s grounds of appeal refer to s 87C(3)(b) of the RT Act. The statutory predecessor to s 87C, in relevantly identical terms, was s 87 of the RT Act. Section 87(3)(b) of the RT Act was considered by the Appeal Panel in [2018] NSWCATAP 154 () at [32]-[34] and [36]-[60] and [2022] NSWCATAP 165 at [26]-[37] ().
“[29] We would note that, on its terms, s 87(4) does make the issue of ”the circumstances of the case” a mandatory consideration. It must be considered to justify findings on which the exercise of the evaluative judgment contained in s 87(4), for the Tribunal to then terminate the tenancy, is predicated. What then does the term mean?
[30] An instructive decision of the Appeal Panel relevant to this issue is Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 (“Kelly”). Kelly included a detailed analytical review of relevant Court of Appeal and Appeal Panel authorities.
[31] In Kelly, the Appeal Panel cited with approval the Court of Appeal’s decision in Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 764; [2008] NSWCA 277 (“Scicluna”). One aspect decided by the Court of Appeal in that case was the breadth of the term ”circumstances of the case” when used in section 64 (2) (b) of the Residential Tenancies Act 1987 (“the 1987 Act”). That required the Tribunal to consider whether in the circumstances of the case the breach of the tenancy agreement was such as to justify its termination. Campbell JA at [62], with whom Hodgson JA agreed, considered that the phrase ”the circumstances of the case”:
“...encompasses all aspects of the particular case that is before the Tribunal.”
[32] That followed the approach adopted in earlier cases and in particular Swain v Residential Tenancies Tribunal of NSW (Unreported, Supreme Court of NSW, Rolfe J, 22 March 1995) (“Swain”), which is cited with approval in another Appeal Panel decision: Taylor v Peslak [2018] NSWCATAP 57 (Taylor). In Taylor at [62] and [65] the Appeal Panel approved the following observations by Rolfe J in Swain:
[62]...(T)he Tribunal must be satisfied of the relevant matter…which, for present purposes, is that “having considered the circumstances of the case, it is appropriate to (terminate the tenancy agreement). As I have said I do not regard those words as encompassing a satisfaction as to…fulfilment of the requirements to serving a valid notice and the necessary time having run. In my view “the circumstances of the case” have a wider meaning…
[65] Possible “circumstances”, which may have to be taken into account, are the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity…for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation…An approach such as this accommodates, more easily, the bases on which the Tribunal must proceed..
[33] Rolfe J’s formulation was upheld by the Court of Appeal in Roads and Traffic Authority v Swain & Ors (1997) 41 NSWLR 452.
[34] Significantly for the issue before us, in Kelly the Appeal Panel followed the approach suggested by Rolfe J in Swain and in doing so, observed, at [49] that His Honour’s reasoning:
..supports the proposition that the personal and family circumstances of the tenant are considerations that must be taken into account as circumstances of the case…Consideration under s 87(5) of steps undertaken by the tenant to remedy a breach, and the previous history of the tenancy, of necessity require some understanding and consideration of the tenant’s personal and family circumstances, in particular as that may explain why the breach or breaches were not remedied... Section 87(4)(b) requires the Tribunal to decide whether the breach is in the circumstances of the case sufficient to justify termination. In that evaluation the particular circumstances of the tenant that inform an understanding of the breach and whether it is sufficient to justify termination of the tenancy are relevant considerations.
[35] In Kelly, the Appeal Panel further noted, at [51]:
… In considering all circumstances relevant to the tenant’s breach…the Tribunal must consider the facts and circumstances of the particular matter before it, but must also be cognisant that many social housing tenants suffer circumstances of personal hardship (reflected by the fact that they are eligible for social housing and often eligible for reduced rent compared to tenants in the private market) and that the relevant circumstances under section 87 of the RT Act in a case involving breach by reason of not paying rent are to be considered in the context of why the tenant is not paying rent and whether or not the breach by reason of the tenant’s failure to pay rent is sufficient to justify termination of the tenancy. (Emphasis added)
…
[37] The decision in Kelly, with which we agree, confirms that in matters involving the Tribunal’s consideration of the making of a termination order for a residential tenancy agreement (in particular but not restricted to those concerning social housing tenancies), the tenant’s circumstances and the effect of termination on the tenant are mandatory considerations.”
“Subsection 87(5) provides a non-exhaustive list of considerations which the Tribunal may consider in considering “the circumstances of the case”…”
“[50]…The language of s 87(4)(b) requires focus on the breach, and the Tribunal is not, as suggested at [45] in Mann, limited to consideration of the particular circumstances of the tenant. As Taylor v Peslak confirms, the circumstances of the landlord are relevant as well.”
Whether the breach is sufficient in all the circumstances to justify termination of the tenancy is dependent upon what evidence is before the Tribunal at the hearing. The landlord’s termination application was listed before the Tribunal on 7 April 2026, and in circumstances where there was no appearance by the tenant it was open to the Tribunal to determine the application by hearing the matter on that occasion.
The Consumer and Commercial Division of the Tribunal has the power to conduct ex parte hearings, provided it is satisfied it is appropriate to do so in the circumstances set out in r 35 of the NCAT Rules. The Member’s reasons indicate that he considered and addressed, in substance, the requirements of r 35 of the NCAT Rules and determined the matter proceed ex parte.
The Tribunal had evidence of the history of rent payments; and the failure to comply with previous orders of the Tribunal. The tenant did not provide a sound recording or transcript of the hearing (nor did the landlord, but that is not surprising when the tenant had failed to comply with the procedural directions of the Appeal Panel at the Call Over). We do not know what further submissions were made orally at the hearing on 7 April 2026 by the landlord’s agent, or any questions asked by the Member, or any other issues raised. However, the material before the Member provided by the landlord was sufficient to justify the findings to terminate the tenancy for non-payment of rent, and to make a finding under s 89(5) of the RT Act.
If the tenant had appeared at the hearing on 7 April 2026, the tenant could have provided evidence of his personal circumstances and made submissions that the breach by non-payment of rent was not sufficient, in all the circumstances, to justify termination of the tenancy.
However, he did not appear and did not provide such evidence. The Tribunal could not consider the circumstances of the tenant that were not put forward by the tenant.
If it was a requirement that the Tribunal must always take into account the possibility that the tenant may, but has not, provided evidence of personal circumstances, the Tribunal could rarely terminate a tenancy at an ex parte hearing, because there may be potentially relevant circumstances of the tenant that were not in evidence at the time of the hearing. Neither Kelly or King sets out the mandatory consideration of whether the breach is, in all the circumstances, sufficient to terminate the tenancy in such broad terms.
The written reasons of the Tribunal Member, while not extensive, meet the “minimum characteristics” of sufficient reasons such that no error on a question of law or grounds for leave to appeal arise from any inadequacy of reasons (Lin v Westerman [2025] NSWCATAP 319 at [56]-[57]).
The tenant did not clearly raise denial of procedural fairness as a ground of appeal. However, he asserted that he was “confused” and “mistaken” that the landlord’s applications were listed before the Tribunal on 7 April 2026. However, there was no clear evidence from the tenant that he had not received a notice of hearing from the Tribunal or any information from the landlord’s agent that the matters were listed before the Tribunal on 7 April 2026. A mere assertion of being mistaken or confused about a Tribunal hearing date is insufficient to establish a denial of procedural fairness ( [2025] NSWCATAP 246 at [39]-[43]; [2024] NSWCATAP 47 at [23]-[24]).
The previous reasons dealing with procedural fairness and adequacy of reasons also apply to the decision to award compensation for cost of replacing the garage door. The tenant has failed to establish any denial of procedural fairness, or inadequacy of reasons that would establish an error on a question of law or basis for granting leave to appeal.
The tenant raised in the grounds of appeal that the garage door was not part of the residential premises under the residential tenancy agreement between the parties.
As discussed previously, the residential tenancy agreement clearly stated that it included access to a car parking space in the strata building and that it was a term of the written agreement that the tenant not damage the garage gate. I accept that the phrase “garage gate” applies to the automatic garage door of the strata building that leads to the car park. Accordingly, the garage door was provided with the premises (Sharma v Hoque [2026] NSWCATAP 198 at [46]-[47]).
No error is established in the finding of the Tribunal that the tenant had breached the residential tenancy agreement by causing damage to the garage door either by reason of the specific term of the written residential agreement or the obligation that is implied into the residential tenancy agreement under s 51(1)(d) of the RT Act.
The tenant’s comments at the Appeal Panel hearing that he disputes that the garage door needs to be replaced do not establish any error on a question of law in the decision, or a basis to grant leave to appeal. It was open to the Tribunal on the evidence before it to find that the tenant was liable for the cost of replacing the door. A quotation may be sufficient evidence to establish loss (Hall v Hawkins [2015] NSWCATAP 197 at [79]) and no error on a question of law or grounds for leave to appeal is established merely because the Tribunal considered a quotation rather than a tax invoice.
The tenant’s disagreement with the amount he has been held liable to pay, or any financial difficulties he may face by having to pay the amount awarded to the landlord, are not a basis to allow the appeal.
“[22] The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(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, 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];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(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].
By reason of the lodging of the set-aside application; then the appeal and the granting of a Stay, the time period for the landlord to obtain a warrant for possession from the Registrar of the Tribunal has expired (s 121 of the RT Act).
As in Kelly v NSW Land and Housing Corporation [2026] NSWCATAP 214, the Appeal Panel regards it appropriate to exercise its discretion to vary the order for possession in the Tribunal orders under appeal, rather than forcing the landlord to make an application to the Tribunal to extend time to obtain a warrant for possession, in circumstances where the landlord’s right to obtain a warrant was only delayed by reason of the unsuccessful set-aside application and unsuccessful appeal.
As discussed previously, the tenant did not provide any documentary evidence in respect of the condition of his son. However, the Appeal Panel had no reason not to accept him at his word, and that he is caring for a 5 year old son with a disability.
The Appeal Panel accepts that the tenant may have difficulties in easily obtaining a new rental property. However, the period of suspension of the date of vacant possession cannot be based exclusively on the tenant’s assertions of hardship or sympathies that arise from those circumstances. The other side of the equation is that the tenant has failed in the appeal against the termination and possession orders of the Tribunal, and there was a finding made under s 89(5) of the RT Act that the tenant had frequently failed to pay rent on time and in accordance with the terms of the agreement during the tenancy.
The Appeal Panel is satisfied that it is appropriate in all the relevant circumstances to vary the date of vacant possession in the orders under appeal to 12 August 2026. This will provide time for the tenant to obtain alternative accommodation or assistance. The orders of the Tribunal dated 7 April 2026 in respect of payment of the occupation fee remain operative.
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. Registrar
Oliveira
Langting Property Pty Ltd
[1990] HCA 33
[2026] NSWCATAP 214
[2010] HCA 1
[2000] HCA 57
[2026] NSWCATAP 198
(2020) 103 NSWLR 479
(1990) 170 CLR 321
(2010) 239 CLR 531
(2010) 241 CLR 390
(2000) 204 CLR 82
(1987) 163 CLR 54
(1968) 118 CLR 186
(1985) 4 NSWLR 139
(2008) 72 NSWLR 764
(1997) 41 NSWLR 452
(1998) 195 CLR 516
(2007) 71 NSWLR 61
The landlord’s application for compensation due to replacement of the garage door was to be listed before the Tribunal on 22 April 2026. However, the landlord’s agent made a request to the Tribunal that the matter be listed together with the landlord’s re-list application in respect of termination of the tenancy on 7 April 2026.
On 17 March 2026, the Tribunal (George SM) made orders in chambers that both of the landlord’s applications be listed before the Tribunal on 7 April 2026.
On 7 April 2026, the Tribunal made the orders the subject of the appeal. Economical written reasons were provided in both matters.
In the termination application, the Tribunal found the rent arrears as of 7 April 2026 were $1,790, and ordered the tenant pay that amount to the landlord. As discussed previously, the Tribunal terminated the tenancy for non-payment of rent; made a finding that the tenant had frequently paid rent (s 89(5) of the RT Act) and suspended the date of vacant possession to 15 April 2026.
The reasons of the Tribunal state that the Member was satisfied the Tribunal Registry had sent the notice of hearing to the tenant, and that it and not been returned. The Member was satisfied it was in the interests of justice to proceed ex parte. The Member stated that he was satisfied “on the sworn evidence in the Hearing Notes and the Supplementary Facts initialled by me and placed with the papers” that there was a residential tenancy agreement; a valid notice to terminate; the tenant was in breach of the agreement, and the landlord had “proved the claims on the balance of probabilities.” The Member stated that there was no evidence of any “sufficient explanation” for the breach of the agreement, or any “defence.”
The reasons then detail why the Tribunal determined it appropriate, in the exercise of discretion, to suspend the date of vacant possession.
In the application for damage to the garage door, the Member’s reasons again state that he was satisfied that the Tribunal Registry had sent a hearing notice and it was in the interests of justice to proceed. The reasons state that the Member was satisfied “on the sworn evidence before it” that the tenant had breached the residential tenancy agreement by causing or permitting damage to the garage door. The award of compensation was based upon a tax invoice from All Doors (NSW) Pty Ltd in respect of replacement of the garage door, less a small amount for “depreciation.”
The tenant lodged a set-aside application under Reg. 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation) in respect of the orders for termination and possession. On 24 April 2026, the Tribunal (De Jersey PM) granted a Stay and made procedural orders in chambers for the parties to lodge and serve documents and submissions in the set-aside application.
On 1 May 2026, the Tribunal (Britliff GM) dismissed the set-aside application with written reasons. The basis of the dismissal was that the set-aside application had been lodged beyond the limitation period and no basis had been established to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The reasons also state that the tenant had not provided any evidence of rent payments that caused any doubt as to the accuracy of the information in the landlord’s rent ledger.
On 15 May 2026, the tenant lodged a Notice of Appeal and application for a Stay. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) a party in residential tenancy proceedings has 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later) to lodge an appeal. Time can be extended under s 41 of the NCAT Act. The Notice of Appeal acknowledges the appeal has been lodged out of time and provides reasons why the tenant should be granted an extension of time.
On 2 June 2026, the landlord lodged its bundle of documents in opposition to the Appeal. The landlord’s documents relevantly included:
The written residential tenancy agreement.
The managing agency agreement.
The notice to terminate for non-payment of rent.
The rent ledger.
The relevant orders made by the Tribunal.
Email correspondence between the parties, including correspondence in respect of the damage to the garage door by way of an email from the landlord’s agent to the tenant dated 19 February 2026 which contained the quotation of All Doors (NSW) Pty Ltd dated 12 February 2026.
A periodic inspection report (including photographs) dated 13 March 2026.
The “hearing notes” the landlord’s agent had provided to the Tribunal on 7 April 2026.
On 3 June 2026, the appeal was listed for a Call Over and hearing of the Stay application before Blake PM. The tenant and the landlord’s agent appeared by audio-visual link. The Tribunal made a consent order granting a Stay of the order for possession until further order of the Tribunal or the finalisation of the appeal, whichever is earlier. The Appeal Panel also directed that the tenant lodge and serve all documents and submissions in the appeal, and any sound recording and transcript relied upon, by 1 July 2026. The landlord was to lodge and serve any further documents, submissions and any sound recording or transcript by 8 July 2026. Order 7(1) made clear that a party may not be allowed to rely upon documents, submissions, sound recording and transcript that were not lodged and served in accordance with the orders of 3 June 2026.
No documents and submissions had been lodged and served by the tenant in accordance with the orders of 3 June 2026. The landlord did not lodge and serve any further documents beyond the bundle of documents of 2 June 2026.
On 9 June 2026, the landlord lodged a Reply to Appeal.
The appeal was listed for hearing on 14 July 2026. The tenant appeared in person. Mr Fayed, agent of the landlord, appeared for the landlord.
At the appeal hearing, despite the orders of 3 June 2026, the tenant sought to rely upon a further bundle of documents. Those documents will be referred to later in these reasons.
The explanation of the tenant for not complying with the orders of the Appeal Panel dated 3 June 2026 were that he did not understand the orders; English was his second language; he had work commitments; and he is the sole carer of a 5 year old disabled son.
In respect of any language difficulties, it is noted that the tenant had never made a request for an interpreter to the Appeal Panel; nor did he display any difficulty in comprehension or communication such that the Appeal Panel on 14 July 2026 had any concern that he required the assistance of an interpreter. Mr Fayed submitted that Blake PM had clearly explained to the tenant the substance of the procedural directions made on 3 June 2026 and the importance of complying with them.
Neither party sought an adjournment of the appeal hearing on 14 June 2026. The Appeal Panel heard oral submissions from both parties.
The tenant had provided no documentation, such as any medical reports or other materials, that referred to the disabilities of his son or any proximity to schools or specialist treatment services.
The tenant was not prepared to indicate any period to vacate the premises.
The landlord’s agent submitted that the tenant had consistently, over a long period of time, paid rent irregularly and that was set out in the rent ledger. The landlord’s submission was there was no legal error in the decisions under appeal and the appeal should be dismissed. In respect of the garage door, the landlord’s agent submitted that repairs had been performed to the door so that it would work and so that persons could use the building carpark, but that the door was sufficiently damaged that it would need to be replaced.
On the issue of an extension of time, the tenant did not make any oral submission beyond what was set out in the Notice of Appeal. In the Notice of Appeal, the tenant identified that the reasons he did not lodge his appeal within time were as follows:
In this matter, the photographs of the inside of the unit are not relevant to the grounds of appeal from the decisions of 7 April 2026.
The photographs and messages regarding the garage door are not significant nor were they not reasonably available to the tenant prior to 7 April 2026. There is no dispute the tenant’s vehicle damaged the garage door. The landlord never adopted the position, either at the Tribunal hearing or at the appeal hearing, that no repairs had been performed to the door. Rather, the position of the landlord was that the door, even after the repairs, was sufficiently damages that it requires replacement. The documentary materials of the tenant do not address that issue.
The messages regarding access to the premises to check the smoke alarm, and the allegation that the landlord or agent had removed belongings are irrelevant to the grounds of appeal. Whether or not the tenant has rights under the RT Act to make a separate application to the Tribunal regarding those allegations is not a matter that requires comment for the purpose of the disposition of this appeal.
The screenshots of the rent payments are of limited relevance, and are not “significant” evidence. The screenshots do not demonstrate that the information contained in the landlord’s rent ledger that was relied upon by the landlord at the Tribunal hearing did not accurately reflect the tenant’s history of rent payments.
Both Kelly and King involved social housing tenants whose tenancy was terminated for breach and the tenant had appeared at the hearing and provided evidence. In both decisions, there is consideration and discussion of s 154E of the RT Act, which only applies to social housing tenancies. This appeal does not involve a social housing tenancy.
In both Kelly and King, the Appeal Panel found that “whether breach is, in the circumstances of the case, sufficient to justify termination of the agreement” is a mandatory consideration.
In King, the Appeal Panel stated at [29]-[35] and [37]: