Poolkerd v de Clifford

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2. These orders are made by consent, in full and final settlement of this matter and the landlord's application (2025/112926), and without admission as to liability.

3. The Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

4. The order for possession is suspended until 01 June 2025.

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6. The respondent Eloise Poolkerd and Wichot Poolkerd are to pay the applicants Shauna De Clifford and Ricky Slingsby the sum of $9,000.00 by the following:

a. $2,700 on or before 18 May 2025 and

b. the balance on or before 13 July 2025.

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7. The landlord is to lodge the bond with the Rental Bond Board by 11 April 2025.

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1. The appellants did not comply with order 7. They submitted they were unable to comply due to delays with the Rental Bond Board processes.
2. The respondents complied with the termination orders and vacated the premises on or before 1 June 2025.
3. The appellants paid $1,700 of the amount ordered in order 6a and made no payment towards order 6b.
4. The appellants claim that the consent orders were made as consequence of misleading information and that the Tribunal failed to consider alleged breaches by the tenants.
5. The appellants appealed from this decision. They need an extension of time to bring the appeal.
6. At the hearing of the appeal we raised a federal diversity jurisdiction issue with the parties because it appeared that the parties resided in different states when the proceedings were commenced. After discussion with the parties, we made directions for the provision of submissions and evidentiary material concerning this issue.
7. The directions made by the Appeal Panel on 30 September 2025 were as follows:

1. By 14 October 2025, the parties are to lodge and serve submissions and any evidentiary material concerning the question whether the Tribunal and the Appeal Panel had and has jurisdiction to determine these proceedings on the basis that each party was a resident of NSW at the time when each of the proceedings were commenced.

2. Each party is to lodge and serve any submissions and evidentiary material in reply by 21 October 2025.

3. By 21 October 2025, the parties are to lodge and serve written submissions as to whether the question whether the Tribunal on Appeal Panel had and has jurisdiction to determine these disputes can be dealt with on the papers without any further hearing.

1. For the reasons outlined below, we have decided that the Tribunal did not have jurisdiction to determine the proceedings. Accordingly, we have decided that the required extension of time in which to lodge the appeal should be granted and that the appeal should be allowed.

1. The following materials were provided by the appellants to the Appeal Panel.

1. The Notice of Appeal, with attached particulars, was filed on 5 June 2025, outside the required time under the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). This was because it was lodged later than the 14 days from the day on which the appellant was given written reasons for or notified of the Tribunal's decision, whichever is the later in time. (r 25(4)(b) of the NCAT Rules).
2. As we have said, the appellants sought an extension of time to lodge the appeal.
3. The appellants state in the Notice of Appeal that leave of the Appeal Panel is sought for the appeal under s 80(2)(b) and cl. 12 of sch. 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that they may have suffered a substantial miscarriage of justice because:

(1) The decision was not fair and equitable; and

(2) The decision was against the weight of evidence; and

(3) There is significant new evidence that was not reasonably available at the time of the Tribunal hearing.

1. The Notice of Appeal had a number of documents attached, including a copy of the consent orders of 10 April 2025 and submissions from the appellants.

1. The appellants filed a further bundle on 11 July 2025. This bundle consisted of a copy of the residential tenancy agreement, correspondence between the parties and others, photographs, the appellants' copy of a document titled rent ledger and bank statements.
2. The appellants also provided further evidentiary material and submissions in relation to the issue of the appellants place of residence at the time the applications were lodged on 13 October 2025, in compliance with the Appeal Panel's directions of 30 September 2025.

1. On 24 June 2025, the respondents filed a reply to the appeal.
2. The respondents filed a bundle of documents on 14 July 2025, which included a copy of the Reply to Appeal, correspondence between the parties and others, photographs and submissions.
3. The respondents did not provide any material concerning the federal diversity jurisdiction issue in accordance with the directions we made on 30 September 2025.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which 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).

1. We consider that a question of law does arise, namely whether the Tribunal erred by failing to address the question whether it had jurisdiction to determine the claim in view of an issue of federal diversity jurisdiction.
2. As appears below, we consider that the Tribunal erred in failing to address this question. We also consider that we should determine this question ourselves, having provided the parties with an opportunity to provide evidentiary material and submissions.
3. In view of our consideration of this jurisdiction issue, as outlined below, it is unnecessary for us to consider the various other grounds of appeal raised by the appellants all of which required leave to appeal.

Consideration - Federal diversity jurisdiction issue

Should the Appeal Panel determine the matter on the papers?

1. By the directions made at the hearing of the appeal on 30 September 2025, the parties were provided with an opportunity to present evidence and make submissions as to whether the jurisdiction issue should be determined on the papers. The appellants submitted that it should be determined on the papers.
2. The respondents have not filed any submissions or other material in accordance with the directions made on 30 September 2025, including in relation to the question whether the jurisdiction issue should be determined on the papers.
3. Having regard to the nature of the issue and the evidentiary material concerning it, including that supplied by the appellants, we consider that it can be adequately determined in the absence of the parties by considering the written submissions and evidentiary material that we have received. Accordingly, pursuant to section 50 (2) of the NCAT Act, we have decided to dispense with a hearing in relation to this issue.

1. The appellants require an extension of time of 42 days in which to lodge the appeal. This is a substantial period of time. Nevertheless, we have decided that the required extension of time in which to lodge the appeal should be granted in view of the fundamental nature of the jurisdiction question which arises and the weight of the evidence in favour of a conclusion that the Tribunal does not have jurisdiction to determine the proceedings. In so concluding, we have applied the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].

1. In Almahy v Jones [2020] NSWCATAP 69 (Almahy), the Appeal Panel said:

19. The Tribunal does not have jurisdiction to hear disputes between residents of different States (Attorney General for NSW v Gatsby [2018] NSWCA 254; (2018) 99 NSWLR 1; Burns v Corbett (2018) 92 ALJR 423). This is because the Constitution provides, in s 75(iv), that the High Court has original jurisdiction in "all matters between ... residents of different States" and, pursuant to s 77(iii) of the Constitution and s 39 of the Judiciary Act 1903 (Cth), that jurisdiction is invested in certain State courts. The Tribunal is not a "court of a State" (Attorney General for NSW v Gatsby [2018] NSWCA 254; (2018) 99 NSWLR 1) meaning that the High Court's original jurisdiction is not invested in the Tribunal.

20. The time at which jurisdiction is determined is the commencement of the proceedings. That is, the Tribunal does not have jurisdiction to hear or determine proceedings if the parties were residents of different States when proceedings were commenced (Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623-624; Momcilovic v The Queen (2011) 245 CLR 1, Gummow J at 80 [134]).

1. We have already referred to the addresses in different states given in the respective applications commencing the two proceedings. In addition, as a consequence of the directions we made on 30 September 2025, the appellants have provided uncontradicted evidence in the form of a Statutory Declaration, with attachments, declared by Eloise Poolkerd on 10 October 2025. This declaration states that it is directed at proving the residence of the appellants in Queensland during the period from 20 August 2024 to 1 June 2025.
2. The declaration includes:

(1) A copy of a residential tenancy agreement under which the appellants are the tenants of premises in Ebenezer, Queensland for the period from 20 August 2024 to 20 August 2027.

(2) Evidence as to the employment of the appellants in Queensland during the relevant period.

(3) Evidence about their children's schooling in Queensland during the relevant period, including evidence of enrolments.

(4) A Queensland Drivers licence for Eloise Poolkerd.

1. Also in evidence before us was a copy of the residential tenancy agreement between the parties made on 30 December 2024. This states that the landlords ordinarily reside in Queensland.
2. On the other hand, as we have already mentioned, the respondents have not provided any material in support of any proposition that the appellants were residents of New South Wales at the relevant time, nor is there any other evidence before us that the appellants were residents of New South Wales at the relevant time.
3. There was no suggestion, let alone any evidentiary material, that at the relevant times the respondents were not residents of New South Wales.
4. In these circumstances, we find that at the time when the two proceedings were commenced the appellants were residents of Queensland and the respondents were residents of New South Wales.
5. It therefore follows that the Tribunal did not have jurisdiction to make the orders it made on 10 April 2025.

1. For the above reasons, we make the following orders:

(1) A hearing in relation to the question whether the Tribunal had jurisdiction to determine the proceedings is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The time to file the Notice of Appeal is extended to 5 June 2025.

(3) The Appeal is allowed.

(4) The Tribunal's orders made on 10 April 2025 are set aside and in substitution thereof, the Appeal Panel orders that the Tribunal declines to determine the applications, as they seek to invoke federal jurisdiction in that each application involves a matter between residents of different States.

(5) The Appeal Panel also notes that the parties may have a right to commence proceedings in an authorised court under section 34B of the Civil and Administrative Tribunal Act 2013 (NSW).

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.