P Durack SC, Senior MemberN Kennedy, Senior Member
Catchwords
JUDGMENTS AND ORDERS —— Consent orders- appeal seeks to set
aside consent orders made in primary proceedings – lack
of proof of
circumstances relied upon.
Source
Original judgment source is linked above.
Catchwords
JUDGMENTS AND ORDERS —— Consent orders- appeal seeks to setaside consent orders made in primary proceedings – lackof proof ofcircumstances relied upon.
Judgment (8 paragraphs)
[1]
At the completion of the hearing of this appeal on 30 September 2025, we made orders refusing leave to appeal and dismissing the appeal for reasons that would be provided. These are the reasons.
This was an appeal from consent orders made on 28 May 2025 in a residential tenancy dispute. The dispute was the subject of two proceedings: one brought by the appellant (Landlord) seeking early termination of the tenancy on the grounds of financial hardship (proceedings 2025/00115355); and the other brought by the respondents (Tenants) seeking compensation for an alleged breach of the Landlord's repair obligation in respect of an oven (proceedings 2025/0016 3049). There were separate orders made in each of these proceedings.
In brief, the consent orders made in the Landlord's proceedings were for the termination of the tenancy and the giving of vacant possession to the Landlord on 14 August 2025. The consent orders in the Tenants' proceedings made provision for the Tenants to receive compensation in the amount of $4500 by way of a rent free period before the tenancy terminated.
The appeal was lodged on 4 June 2025 and sought orders that the consent orders be set aside and the application for possession of the property be reheard with a view to obtaining an earlier date of possession. An application for a stay of the consent orders was refused. As a consequence, the Tenants vacated the premises in accordance with the consent orders and obtained a 5 week rent free period to the value of $4500.
Accordingly, the Appellant's only purpose in the pursuit of the appeal became to set aside the compensation order to the value of $4500.
In a number of cases, the Appeal Panel has recognised that consent orders can be set aside in appeal proceedings on the basis of procedural unfairness affecting the making of those orders: see, for example, Inventbuild Pty Ltd v Tulemis[2024] NSWCATAP 49; McDonald v McDonald[2016] NSWCATAP 252. In these cases, references have been made to setting aside the orders on the grounds of mistake and duress, amongst other circumstances.
The Respondents denied that there was any basis for setting aside the consent orders.
It is unnecessary for us to examine the grounds in any more detail, including the elements of the claim, because the Appellant's challenge to the consent orders fails at the level of a lack of proof of the circumstances he relies upon, as we elaborate upon below.
It was common ground that the consent orders resulted from an offer the Appellant made to resolve the two proceedings following a conciliation that took place on the day appointed for hearing.
Later on that day, 28 May 2025, after the consent orders had been made, the Appellant sent a text message to one of the tenants, Mr Denny, which, relevantly, stated:
[2]
Tom, mate, I completely miscalculated the 5 weeks rent reduction offer I made at the NCAT today. After doing the maths, I have just realised that I can't afford and genuinely embarrassed. I was wondering if you boys would please compromise?
.....
Would you kindly consider my situation and help me out please? I totally forgot to factor in the $5000 per month rent and the break lease fee for my apartment.
Happy to catch up in person too if that's easier - I can bring a 6 pack and have a quick chat when you all are around and comfortable. No pressure but I'm really hoping you guys can be a little lenient towards me and help me sort this out without having to do the whole NCAT. We can also discuss/explore other options.
....
[3]
The following day, the Appellant sent another text to Mr Denny in which he said that he had given it some thought the previous night and he realised it was probably not fair to put Mr Denny on the spot to speak for the other tenants. He went on to add:
[4]
If it's easier and fairer for everyone (also I don't want to go bankrupt), I might just go back to NCAT and request a variation to the agreement formally, so that it's all transparent and on record.
Of course, if you guys are happy to have a quick chat or explore something before that, I'm still very open. Either way, no pressure.
.....
[5]
Significantly, in neither of these contemporaneous texts to the events in question did the Appellant make any suggestion that he had put forward terms set out in the consent orders under pressure and/or because he had been misled about his legal rights.
However, in the Notice of Appeal and in two subsequent submissions documents, the Appellant made assertions in general terms that the consent orders were made under a misunderstanding and under pressure. For example, in Appendix A to the Notice of Appeal he stated:
[6]
During the conciliation, I was repeatedly told - by both NCAT conciliation officers and the tenants - that tenancy laws had changed and I would not be permitted to move back into my property even after the lease ended. This was legally incorrect. However, I was unrepresented, under financial stress, and unaware I could reject the proposed orders.
The 5-week rent concession was offered as part of a pressured negotiation around the tenants' compensation claim, which was outside the scope of my original application. I did not fully understand my rights or the long-term consequences of that agreement.
[7]
Like statements of a similarly general nature were also made in submissions documents, dated 11 June 2025 and 18 August 2025.
At no time did the Appellant provide any statement (signed or otherwise), giving any specifics about the alleged misrepresentation or any explanation as to the terms of the contemporaneous texts and the absence of any reference in those texts to misrepresentations being made to, and pressure on, the Appellant during conciliation.
Importantly, by directions for the conduct of the appeal given on 20 June 2025, the Appellant was directed to lodge and serve by 25 July 2025 his evidentiary material in support of the appeal, including any evidence not provided to the Tribunal at first instance on which it is intended to seek leave to rely. He was also directed to provide a typed transcript of relevant parts of the hearing, if what happened at the hearing at first instance was being relied upon. No such transcript was provided.
Despite these directions and the fact that his appeal was founded upon alleged events and circumstances that had not been presented to the Tribunal at first instance, the Appellant did not provide any statement that might be capable of amounting to probative evidence in support of his challenge to the consent orders.
When asked at the hearing of the appeal about the absence of any such written statement, including in the context of the above directions for the conduct of the appeal, and why, in these circumstances, we should accept his assertions of misrepresentation and pressure, the Appellant said he had nothing to say in response.
Accordingly, we considered that the Appellant had been given the opportunity to present the requisite evidence in support of his challenge to the consent orders but had failed to provide any evidentiary material capable of amounting to probative evidence of the alleged misrepresentation and pressure.
[8]
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.