Poliansky v NSW Land and Housing Corporation

1. This is an internal appeal of orders made by the Consumer and Commercial Division on 12 June 2025 in relation to a residential tenancy agreement between the applicant, Mr Poliansky, as tenant, and the respondent, NSW Land and Housing Corporation (Housing NSW), as landlord. The orders were made following the hearing of Housing NSW's application for termination and possession of residential premises the subject of the agreement under the Residential Tenancies Act 2010 (NSW) (RTA).
2. The Tribunal declined to make the orders for termination and possession and instead made orders by consent relating to Mr Poliansky's dog, his visitors' dogs attending the premises and his request to be transferred to another tenancy on medical grounds. The Tribunal further directed that if the orders were not complied with, a request to relist the matter may be made by Housing NSW on or before 12 December 2025.
3. Mr Poliansky appeals these orders under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW). His notice of appeal and application for a stay was lodged on 10 July 2025. This is outside the 14-day time limit set out in the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) for instituting an internal appeal against a decision made in residential proceedings under the RTA: r 25(4)(b).
4. We have given Mr Poliansky an extension of time to lodge the appeal for the reasons later outlined. However, we have refused him leave to appeal on any ground other than on a question of law and we have otherwise dismissed his appeal.
5. Mr Poliansky was self-represented, and Housing NSW was represented by a senior solicitor from the Department of Communities and Justice (DCJ).

1. On 7 February 2025, Housing NSW lodged an application for a termination of the tenancy on the grounds of alleged multiple breaches of the residential tenancy agreement, primarily relating to Mr Poliansky's dogs. The application was made under s 187 (1)(i) of the RTA. The matter was first listed for conciliation and hearing on 7 March 2025. The proceedings were not finalised on that day, and the matter was listed for hearing on 12 June 2025.
2. On 12 June 2025, Mr Poliansky represented himself and Housing NSW was represented by a senior client services officer and team leader. At the hearing, there was discussion about issues relation to Mr Poliansky's dogs, and in particular his assistance dog, Honey, and his desire to be transferred to other accommodation for mental health reasons. The discussion included proposed terms of a specific performance order allowing Mr Poliansky to keep his assistance dog at the premises on certain conditions. At the end of the hearing the following orders were made, by consent:

(1) The Tenant must comply with the terms of the Residential Tenancy Agreement by keeping his registered pet assistance dog, Honey, a Staffordshire bull terrier, on leash at all times while outside his unit.

(2) The Tenant must comply with the terms of the Residential Tenancy Agreement by not permitting his visitors' dogs to attend the premises without being on a leash. The number of visitors' dogs is limited to 1 person, to be kept on a leash at all times outside the unit.

(3) The Tenant must comply with the terms of the Residential Tenancy Agreement by not causing or permitting a nuisance or interfering with the reasonable peace, comfort or privacy of neighbours by the tenant's assistance dog engaging in antisocial and unhygienic behaviour and the tenant is to prevent his assistance dog from intimidating neighbours in the lift and in common property.

(4) The applicant will reassess the respondent's request for a transfer upon compliance with the above orders. The Tribunal notes the Tenant has requested a high priority medical transfer.

(5) If the orders are not complied with, a request to list the matter can be made by the applicant on or before 12 December 2025. The applicant's position is that it will seek a termination and possession order if it is required to apply for a relist. When requesting the relist, the applicant is to lodge with the Tribunal, and give to the other party, the reasons for the request in writing.

1. It is also recorded at the bottom of the orders that the above orders were made by consent.
2. While they are not expressed to be so, it is apparent that these orders were made by the Tribunal pursuant to s 187(1)(b) of the RTA, which relevantly provides that the Tribunal may, on application by a landlord or tenant, make an order that requires an action in performance of a residential tenancy agreement. This is consistent with the transcript provided by Housing NSW of the matters discussed at the hearing.

1. On 25 July 2025, the Appeal Panel listed the appeal for call over and made directions about evidence and submissions in respect of any application for a stay.
2. On 6 August 2025, the Appeal Panel made directions about the conduct of the appeal, including setting a timetable for the parties to lodge and serve all evidence and submissions on which they intended to rely, being evidence provided to the Tribunal at first instance and any evidence not provided on which it is intended to seek leave to rely. The parties were also directed to provide a typed transcript if what happened at the hearing at first instance was being relied on. The application for a stay was dismissed.
3. On 2 September 2025, the Appeal Panel, at the request of Housing NSW and after dispensing with a hearing under s 50(2) of the NCAT Act, gave the respondent leave to be legally represented on condition that no legal costs may be recovered in the appeal.
4. On 30 October 2025, the Appeal Panel extended the time for compliance with the timetable by Housing NSW and gave Mr Poliansky a consequential extension of time. Housing NSW lodged its material, including a typed transcript of the hearing, by 6 November 2025. Mr Poliansky did not lodge any further material other than his notice of appeal with detailed grounds attached.
5. On the morning of the hearing of the appeal and at his request, Mr Poliansky was given leave to appear by audio visual link.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states:

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

(2) Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. An "interlocutory decision" is defined in s 4(1) to mean any of the decisions listed in the subsection, such as the granting of a stay or adjournment and "any other interlocutory issue before the Tribunal". The meaning of "interlocutory" is not defined in the NCAT Act other than indirectly by reference to ss 4(1) and 80(2)(b), which make it plain that an ancillary decision is not an interlocutory decision. An "ancillary decision" is defined in s 4(1) as a decision made by the Tribunal (other than an interlocutory decision) "that is preliminary to, or consequential on, a decision determining proceedings". Examples include costs and jurisdiction decisions.
2. Notably, there is a distinction in the appeal process under s 80(2) between interlocutory decisions and other decisions, which, by implication and reference to the definition in s 4(1), are decisions which determine the proceedings, or which are preliminary to, or consequential on, a decision determining proceedings. Leave to appeal is required for interlocutory decisions. However, for decisions under s 80(2)(b), including ancillary decisions, there is an appeal as of right on a question of law, otherwise leave is required.
3. The circumstances in which the Appeal Panel may grant leave to appeal under s 80(2)(b) from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to 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).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated that 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 and, ordinarily, it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(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;

(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. In summary, internal appeals may generally be made as of right on a question of law in respect of ancillary decisions and decisions which determine the proceedings (for simplicity referred to as "final" decisions), and otherwise with leave (that is, the permission) of the Appeal Panel.
2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters at [13] including whether the Tribunal identified the wrong issue or asked the wrong question, whether a wrong principle of law had been applied, whether there was a failure to afford procedural fairness, whether there was no evidence to support a finding of fact and whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. This was recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40] esp at [30]-[32], where the Appeal Panel found that Prendergast was "overly reductive" [31] and identified, together with the authorities there cited at [32], further questions of law such as: whether the Tribunal drew inferences that were not available from the facts found; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question and whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction.
4. Where a party is self-represented and their material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] and Cominos v Di Rico [2016] NSWCATAP 5 at . However, it is important to note that an appeal is not an opportunity for the losing party to rerun the party's case: at .

(1) The requirement for leave is a filter restricting access to the appeal process.

(2) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.

(3) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case.

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice.

(5) Subject to the above, the matters set out in Collins at [84] are also relevant to the exercise of a discretion to grant leave.

1. The grounds of appeal as specified in Mr Poliansky's Notice of Appeal can be summarised as follows:

(1) The Tribunal's decision to refuse Mr Poliansky's assistance dog in training, as well as any other pets he is entitled to keep, to reside at the property is in direct contravention of both federal and state legislation, including the Disability Discrimination Act 1992 (Cth), the Anti-Discrimination Act 1977 (NSW), the Guide, Hearing and Assistance Dogs Act 2009 (Qld) and the Residential Tenancies Amendment (Tenant Protections and Fair Evictions) Act 2023 (NSW). These laws collectively protect the rights of tenants with disabilities to keep assistance dogs and pets essential to their health and wellbeing. The orders failed to uphold his legal rights to reasonable accommodation and discriminately impact his ability to manage serious mental health conditions with necessary support animals.

(2) The Tribunal failed to give appropriate weight to critical evidence regarding Mr Poliansky's diagnosed mental health conditions and the essential role of his assistance dog in training. The decision fails to properly consider evidence and legislation.

(3) The orders do not address the ongoing harassment and victimisation by a neighbour who was repeatedly lodged complaints and discriminated against Mr Poliansky on the basis of the breed of his assistance dogs another pets. This constitutes unlawful harassment and victimisation under the Anti-Discrimination Act and interferes with his right to quiet enjoyment of the property.

1. Mr Poliansky seeks orders that the original decision and any related orders refusing permission for his assistance dog in training and other pets to reside at the property be set aside. He also seeks orders under the Anti-Discrimination Act and the other legislation referred to in his grounds of appeal.
2. In reply, Housing NSW contends that the orders do not disclose any errors of law through a denial of procedural fairness or a failure to consider relevant legislation and evidence. Mr Poliansky had every opportunity to advance his case at the hearing but failed to do so. No factual errors were made, nor was the decision against the weight of evidence. The Tribunal simply determined the agreement reached between the parties was within the jurisdiction and power of the Tribunal and considered it appropriate to do so within its general order making power. The orders were made by consent. Mr Poliansky's grounds relate to the evidence rather than the application of the law and principles. Mr Poliansky has not suffered a substantial miscarriage of justice, and he should not be given leave to appeal.

1. In addition to the Notice of Appeal, Reply to Appeal and its written submissions, Housing NSW provided an appeal bundle which comprised documents before the Tribunal at first instance in relation to the alleged breaches by Mr Poliansky and a typed transcript of the hearing on 12 June 2025. As already noted, Mr Polianksy did not provide any further written material, although he made oral submissions, the detail of which is outlined below.

1. In his oral submissions, Mr Poliansky said that he appealed the orders of the Tribunal because DCJ is trying to terminate him because of his assistance dog. DCJ is refusing to recognise the Anti-Discrimination Act and the importance of his assistance animal to his mental health. He also said he wants to transfer to another location because of his mental health issues, and this should have been taken into account. His doctors could be contacted, and they could tell the Appeal Panel about his mental health conditions.
2. Mr Poliansky contends that DCJ does not recognise his human rights, and he has filed a complaint with the Human Rights Commission for discrimination under the Disability Discrimination Act, which has now been accepted by the Commission. Mr Poliansky submits that DCJ and the Tribunal did not have regard to these matters, and he is relying on the fact that his assistance dog should have access to his rental premises. Mr Poliansky further submits that he is concerned about the delay for the relisting on 12 December 2025 and because of this concern, he has not been living at the premises - he is homeless and has been living in his car. He is concerned that if he has been found to breach the orders, he will be "kicked out" of the property. He also trains other assistance dogs, which he says he is entitled to do.
3. Housing NSW submits that Mr Poliansky's claim was lodged out of time and should be rejected. It is also submitted that the orders made by the Tribunal were fair and equitable and there was no procedural unfairness. Mr Poliansky was given every opportunity to present his case. One of the issues was whether the other dogs Mr Poliansky was training could be at the premises even though they were not assistance dogs. There is no new evidence that Mr Poliansky has submitted. All of the material before the Tribunal at first instance, which related to the behaviour of Mr Poliansky's dogs, the difficulty experienced by other tenants and the warnings given to Mr Poliansky under an Antisocial Behaviour Warning Notice, was considered by the Tribunal when making the orders. The orders were made by consent after considering these matters.

1. Having regard to the decision and the orders made by the Tribunal at first instance and the grounds, reply and material before us, the issues for determination are: whether Mr Poliansky should be given an extension of time to lodge his appeal, whether the decision made is interlocutory or ancillary, whether the appeal raises a question of law and, if it is an interlocutory decision or ancillary decision which does not raise a question of law, whether leave should be given to appeal or whether the appeal should otherwise be dismissed.

1. In his Notice of Appeal, Mr Poliansky states that he does not require an extension of time to lodge his appeal. This is possibly because Mr Poliansky, who lodged his appeal within 28 days of the order being made, may not have appreciated there is a shorter period for internal appeals against decisions in proceedings under the RTA. Given Mr Poliansky's appeal relates to residential proceedings it has been lodged out of time. Under r 25(4)(b) of the NCAT Rules such appeals must be filed within 14 days of the order being made. Mr Poliansky therefore requires an extension to 10 July 2025 under s 41 of the NCAT Act Section 41 gives the Appeal Panel discretion to extend the period of time for the doing of anything under any legislation in respect of which it has jurisdiction, even if the relevant period of time has expired. This includes extending the time to lodge an internal appeal.
2. In Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]-[22], the Appeal Panel identified the matters to be considered when determining whether time should be extended. These matters include the length of the delay, the reason for the delay, the appellant's prospects of success and the extent of any prejudice suffered by the respondent.
3. Housing NSW opposes the extension of time. It does not point to any prejudice in the delay but submits that Mr Poliansky has not explained his delay and his prospects of success are poor.
4. The delay was 14 days. While Mr Poliansky does not explain his delay, it is implicit from his Notice of Appeal that he was not aware there was a shorter appeal period for proceedings under the RTA. There is no prejudice to Housing NSW − the orders have remained in place and there is no stay. We accept that there are difficulties in Mr Poliansky establishing his grounds, particularly because the orders were made by consent. Despite this, we also accept that both parties have prepared the appeal, Mr Poliansky appeared at the hearing of the appeal and both parties argued their case. Mr Poliansky's Notice of Appeal raises questions of law, or at the least seeks leave to appeal.
5. Having regard to these matters, we did not consider it appropriate to decline to hear the appeal by refusing to extend time. We therefore have decided to extend time for lodging the appeal to 10 July 2025 to permit Mr Poliansky to put forward his contentions.

Nature of the decision and orders made on 12 June 2025

1. The internal appeal jurisdiction of the Appeal Panel is set out in s 32 of the NCAT Act which relevantly includes "any decision made by the Tribunal in proceedings for a general decision". Section 5(1) defines "decision" broadly and includes the making of an order or determination. The consent orders made on 12 June 2025 were made under s 187 RTA. It was a decision of the Tribunal, by reason of s 5 of the NCAT Act. A decision made by consent is an "internally appealable decision" and there is no dispute that the Appeal Panel has jurisdiction to hear the present appeal: Loch v NSW Land and Housing Corporation [2014] NSWCATAP 110 (Loch); Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 and Sylvaney v Carolan [2016] NSWCATAP 36.
2. Because the orders made on 12 June 2025 were by consent, there are no written reasons given for the orders. The Tribunal did not make the orders sought by Housing NSW terminating the tenancy, which was the application made by Housing NSW under s 187(1)(i) of the RTA, but made other orders under s 187 of the RTA for performance of the residential tenancy agreement. Such orders may be made as an alternative s 187(1(i), or potentially as a preliminary order before an order under s 187(1(i) RTA is made. There is no question that the Tribunal had power to make the orders.
3. However, it is open to argument whether the orders embody a final decision, determining the proceedings. The uncertainty is created by the reference to relisting the matter if the orders are not complied with, noting that Housing NSW will seek a termination and possession order if it is required to apply for a relist. The Tribunal further notes that Housing NSW must lodge with the Tribunal, and give to the other party, the reasons for the request in writing. This suggests the orders are not final. At its highest, the orders may be an implied dismissal of Housing NSW's application for termination on the happening of an event in the future, namely the failure to relist on or before 12 December 2025. On this view of the orders, it may be argued the Tribunal made specific performance orders instead of termination orders and, subject to compliance with those orders, the application is dismissed after 12 December 2025 if Mr Poliansky has complied with orders (1) to (3) of the consent orders to its satisfaction and Housing NSW does not relist the matter.

Does the appeal disclose an error on a question of law?

1. Mr Poliansky's Notice of Appeal raises procedural fairness issues and the failure to consider the evidence and legislation which he contends are relevant to his claims. The grounds also appear to raise a claim that the orders made were unjust and unreasonable and have left him homeless.
2. On their face, these contentions raise questions of law. We have taken the last contention, at its highest, to be a claim that the orders were so unreasonable that no reasonable decision-maker would make it. This may raise an error on a question of law.
3. However, having reviewed the material, the orders made and Mr Poliansky's submissions and grounds of appeal, we are satisfied there has been no error on any of these grounds.
4. There is no evidence that Mr Poliansky was denied the opportunity to present his case. He appeared at the hearing and raised many of the issues he now seeks to raise on this appeal. It is also apparent from the transcript that the Tribunal discussed with Mr Poliansky an agreement that he should be permitted to keep one of his dogs at the premises with conditions. This discussion was subsequently reflected in the Tribunal orders made on 12 June 2025. Those orders were made by consent. Mr Poliansky has not raised or established a basis to set aside the consent orders. For instance, he does not claim that the consent orders were vitiated by fraud or undue influence and provides no evidence to this effect. The grounds for setting aside a consent order are the same as those for setting aside the agreement on which it is based and "depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it": Loch at [27]-[29] citing Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. If a party is making such a claim, it will be necessary to provide evidence of the facts which support that ground: Loch at [29].
5. Mr Poliansky does not make any such claim or provide evidence to this effect. Rather, he now seeks to set aside those orders and requests that different orders be made.

1. Mr Poliansky seeks leave to appeal because he contends that the orders were not fair and equitable and were against the weight of evidence and there was a substantial miscarriage of justice.
2. For the reasons already outlined, we are not satisfied that the orders are not fair and equitable or that they are against the weight of evidence. Nor are we satisfied that there has been a substantial miscarriage of justice. Relevantly, they were by consent and were beneficial because the orders gave Mr Poliansky further opportunity to satisfy Housing NSW about his compliance with the residential tenancy agreement. He was permitted to keep his assistance dog and Housing NSW undertook to reassess his transfer request if he complied with the orders.
3. We further note that if the consent orders are not final in nature and therefore interlocutory, this raises additional considerations about whether leave should be granted. In the circumstances of this case, we are not satisfied that the consent order effectively determines the substantive rights of the parties, nor are we satisfied that there has been a substantial injustice. The orders refer to and reinforce compliance with existing obligations under the residential tenancy agreement and make it clear that Mr Poliansky is permitted to do certain things under the agreement. Housing NSW's proceedings for termination potentially remain on foot for the reasons we outline above. However, if Housing NSW decides not to relist the proceedings, it is likely the proceedings will be dismissed in any event. If the proceedings are relisted, Mr Poliansky is not precluded from opposing the termination order sought by Housing NSW.
4. Leave to appeal is refused and the appeal is otherwise dismissed.

(1) The time for the appellant to lodge a Notice of Appeal from the orders of the Tribunal made on 12 June 2025 is extended to 10 July 2025.

(2) To the extent leave to appeal is required, leave is refused.

(3) The appeal 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.