Press v Bird

Cominos v Di Rico [2016] NSWCATAP 5

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

FTB v Children's Guardian [2024] NSWCATAP 174

Health Care Complaints Commission v Robinson [2022] NSWCA 164

May v Ceedive PL [2006] NSWCA 369

Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

O'Keefe v Integral Corporate Property PL [2020] NSWCATAP 76

Orr v Cobar Management PL [2020] NSWCCA 202

Prakash v Health Care Complaints Commission [2006] NSWCA 153

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA)

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wainohu v NSW (2011) 243 CLR 181

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

1. We have decided to allow the appeal because there is no other course where we have found that the Tribunal did not properly consider whether there was jurisdiction to make the primary orders it made on 10 July 2025. Since we have the relevant material before us to do so, we have re-determined the question of jurisdiction, rather than remit it. We have found that the written agreement dated 23 February 2024 between the appellant and the respondent was not a residential tenancy agreement under the Residential Tenancies Act 2010 (NSW) (RTA), so the Tribunal lacked jurisdiction to make the primary orders.
2. Both parties were granted leave for legal representation on the appeal. We do not know whether similar leave was granted in respect of the primary proceedings, but it appears not to have been exercised by either party if it was. We have no indication that the respondent to the appeal, who was the applicant in the primary proceedings, was other than self-represented. The appellant had the considerable and beneficial assistance of a tenants' advisory service in preparing for the appeal, including it appears the grounds of appeal and the written submissions in support of the appeal, but represented herself at the appeal hearing.
3. We were not asked by the appellant to make costs orders and have not done so.

1. In his original application in 2025/00034709 filed 13 March 2025 the respondent, who was then the applicant and whom we shall call the owner, sought against the appellant, who was then the respondent and whom we shall call the occupant, relief under the RTA. The relief sought was termination and possession orders and a money order for what was said to be rent arrears then amounting to $5,875.79. Those orders were sought under the relevant provisions of the RTA.
2. The property part of which was said to be the subject of a residential tenancy was at Yaranbella on the mid north coast of NSW.
3. The written agreement between the parties dated 23 February 2024 was said to be a residential tenancy agreement within the meaning of the RTA.
4. The document was headed "Residential Tenancy Agreement". Under the next heading "Important Information", the document was said to be "your written record of your tenancy agreement" and to be a binding contract under the RTA. The owner was described as "landlord" and the occupant as "tenant". There was another person, who was not named as a party in the primary or appeal proceedings but who was a party, with the owner, as "landlord" to the written agreement. She was a proper party to the proceedings. We shall make an order joining her as an additional respondent to the appeal. When we refer to the owner we are including her in that description. There is no indication of her consent to be joined as a co-applicant in the primary proceedings so we shall join her as a respondent to those proceedings.
5. The term of the agreement was said to be "periodic, beginning on 16 February 2024" and was to be "reviewed annually" (cl 41). The "residential premises" were described as "Lower House Site" and to include a parking space. Within the description the property was said to be "approx. 1 acre cleared land only" (emphasis added).
6. The "rent" was $500pfn and there was no "rental bond". The language of the agreement followed closely the language found in standard written residential tenancy agreements, including in respect of each party's rights and obligations, and referred to the RTA and regulations thereunder.
7. Clause 12b obliged "the landlord" to "take all reasonable steps to ensure that, at the time of signing this agreement, there is no legal reason why the 'lower house site' cannot be used as a residence for the term of this agreement".
8. Clause 40 provided as follows (emphasis added):

"We are supplying the tenant, Rachel Press, with the area at the lower 'house site' located at the bottom of the property, the land only, the tenant will be responsible for their own water, electrical and all waste removal. The tenant is allowed to keep animals as agreed."

1. "Residential premises", a term used in the agreement, was defined to mean "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence".

"Tenancy" was also used in the agreement and was defined to mean "the right to occupy residential premises under this agreement". "Landlord" and "tenant" were defined by reference to "residential premises under this agreement". 2. The primary member granted the relief sought by the owner on 10 July 2025 at final hearing. The order for possession was stayed to 7 August 2025 and provision for payment of an occupation fee after the termination date of 10 July 2025 was made. The money order for arrears was ordered to be paid by instalments of $113pw with the first payment on 18 July 2025. 3. The primary member gave detailed written reasons for the orders made. At [2] of those primary reasons (PR), the primary member referred to the owner as the "landlord" and the occupant as the "tenant" of "residential premises" at the relevant address "under a residential tenancy agreement". The language of tenancy was used throughout the PR. 4. Under the heading "Jurisdiction" the primary member at PR [6] and [7] found that "The Tribunal has jurisdiction to hear and determine this matter. The relationship between the landlord and the tenant is governed by a residential tenancy agreement as defined by [RTA] s 13". There was then discussion of the Tribunal's powers under the RTA. 5. There was no discussion in the primary reasons of the jurisdictional matter the subject of this appeal, as set out below. Owing to what is explained below, we do not need to set out the detailed reasons for the primary member's findings and orders. It was clear that only issues under the RTA had been raised. 6. The appeal was filed in time on 24 July 2025. With it was filed a stay application, on the grounds that the Tribunal did not have jurisdiction because the written agreement was not a residential tenancy agreement within the meaning of the RTA, the occupant had insufficient funds to pay the money order and her health made it problematic that she could vacate by the date of the existing stay (7 August 2025). Following procedural directions on 25 July and 1 and 5 August 2025 concerning the stay application, on 6 August 2025, with oral reasons, leave for legal representation on the appeal was granted (as said earlier), the usual preparation directions for final hearing of the appeal were made, it was noted that the occupant was in the course of moving out of the property and removing her possessions from the property and the possession order was further suspended to 20 August 2025 on condition that the occupant pay the $35.71pd occupation fee. 7. On 11 November 2025 formal leave was granted for both parties to appear at the appeal hearing that morning by AVL. 8. At the appeal hearing it was confirmed by both parties that the written agreement was in respect of the land only, as recorded in the agreement and as stated in the owner's reply to appeal: "The appellant knowingly entered into a lease of land and resided there for over 12 months without objection. She furnished her own caravan and benefited from the arrangement". It was further confirmed that all items on the property, including the caravan in which the occupant had lived on the property, were owned by the occupant and that there was no dwelling on the property owned or provided by the owner.

1. Initially, the nature of some of the material filed on appeal appeared to suggest that there was a broader challenge to the primary reasons and orders than appeared in the notice of appeal. However, it was promptly confirmed by both parties at hearing that the transcript extracts provided (with the complete sound recording) and the photographs of the access road and other documents all were directed to the sole ground of appeal in the notice and also incidentally to the stay application.
2. In particular, the transcript indicated that the issue to which the sole ground of appeal was directed had not been raised by the parties or the primary member.
3. That issue was succinctly put as an alleged error on a question of law, as follows: "The Tribunal made an error of law in concluding that the written agreement between [the parties] was subject to the [RTA], in circumstances where the land leased was not 'residential premises' for the purposes of s 3 of the [RTA]".
4. Since the issue was clear, we understood had been drafted with legal assistance, and was confirmed by the parties as the sole issue, we have not had need to crystallise or distil the grounds as the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13] despite the parties being self-represented at the final hearing and the owner apparently being self-represented throughout:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

Principles governing appeals from the Consumer and Commercial Division

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(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. Paragraph 12 of Schedule 4 to the NCAT Act states:

An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
2. In summary, internal appeals may generally be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
3. Certain decisions require leave for any ground of appeal whether or not it involves a question of law. Section 4(1) of the NCAT Act contains the following relevant definitions to the nature of the decision from which an appeal is brought:

"ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -

(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

(b) a decision concerning the awarding of costs in proceedings."

"'interlocutory decision' of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -

(b) the prohibition or restriction of the disclosure, broadcast or publication of matters,

(d) the extension of time for any matter (including for the lodgment of an application or appeal),

(g) the joinder or misjoinder of a party to proceedings,

(h1) the granting of leave for a person to represent a party to proceedings,

(i) any other interlocutory issue before the Tribunal."

1. The effect of s 80(2) of the NCAT Act with the definition of "ancillary decision" set out above is that this appeal is brought as of right in respect of a question of law concerning jurisdiction. We accordingly do not deal with the principles regarding the grant of leave, or with principles regarding exercise of discretion.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], the Appeal Panel set out at [13] a non-exclusive list of errors of law that can amount to questions of law on the basis of existing appellate authority:

(1) Whether there has been a failure to provide proper reasons where they are required;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. A failure to take into account a "clearly articulated and substantial argument" is a constructive failure to exercise jurisdiction as well as an error of law and so constitutes a question of law: Alexandria Landfill PL v Transport for NSW [2020] NSWCA 165 at [8]- [11]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [87]- [89]; Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [91].
2. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
3. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; O'Keefe v Integral Corporate Property PL [2020] NSWCATAP 76 at [16]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL [2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]; and authority cited in those decisions. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
4. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, 100 NSWLR 578 at [65]- [77] esp at [77]. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NCAT Act s 62(3).
5. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

1. Under s 29(1) of the NCAT Act, the Tribunal has general jurisdiction if legislation such as the RTA enables it to make a decision or exercise a function whether on application or its own motion. Under s 29(2) the Tribunal, in the exercise of general jurisdiction has jurisdiction to make an ancillary decision. It has already been described that a decision concerning whether the Tribunal has jurisdiction to deal with a matter is an ancillary decision. There are equivalent provisions in respect of the Appeal Panel in s 32.
2. RTA s 11 provides as follows:

The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies.

1. Accordingly, there were two avenues of jurisdiction under which the Tribunal could determine the question whether or not it had jurisdiction under the RTA. Under s 29(1) of the NCAT Act with RTA s 11, it could make a declaration on the subject. If it was objected that no one (at primary level) made such an application (because there is no indication in the transcript that either party raised the matter) and the matter being raised by a party was a pre-requisite to the exercise of power to make the declaration, the Tribunal had jurisdiction to determine, as an ancillary decision, whether it had jurisdiction, or didn't, by reason of the nature of the agreement.
2. Indeed, it is part of the obligation of the Tribunal to determine whether it has jurisdiction even if no party raises the matter.
3. It is plain from the primary decision that such an assessment of jurisdiction did not occur. The relevant parts of the primary decision have already been quoted. They did not contain reasons for the stated conclusion, which appears more to have been an assumption than an examination. This was when the base document - the written agreement - itself said, as quoted earlier, that it was granting occupation rights in respect of the land only and when none of the dwelling or other property on the land was that of the owner.
4. There was effectively a failure to determine whether the Tribunal had jurisdiction or to give adequate or any reasons for the brief conclusion that there was jurisdiction.
5. These failures are clear errors on a question of law. The appeal must be allowed.

Appropriate relief on appeal and re-determination

1. Section 81 of the NCAT Act provides as follows:

"(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."

1. In our view it would be contrary to the guiding principle in s 36 and the objective in s 3(d) of the NCAT Act for us not to determine the question of jurisdiction. Neither party sought to put before us, as required by directions made for preparation of the appeal 6 August 2025, further evidence that would be relied on if this course we propose to adopt was taken. This is not surprising as the essential facts were common ground.
2. We therefore proceed to determine the question of jurisdiction.
3. RTA s 13 defines a "residential tenancy agreement" as an agreement "under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence".
4. This requires two criteria to be satisfied. First, there must be residential premises that are the subject of the agreement. Secondly, the person granting for value the right of occupation of residential premises must own or otherwise be entitled to make the grant for value of the occupation. It would be a nonsense if a person who owned or was otherwise entitled to residential premises was required to give value for occupying the premises themselves to someone else.
5. Neither criterion is satisfied here.
6. RTA s 3(1) defines "residential premises" to mean "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence" and "premises" to include a moveable dwelling within the meaning of the Local Government Act 1993 (NSW). The owner accepted that a caravan was such a defined "dwelling".
7. As the owner rightly pointed out in submissions (oral and written) to us, the Note under the definition of residential premises does not form part of the RTA (under s 3(2)). It therefore has limited interpretative impact. It reads "Land on which there is no residence cannot be subject to a tenancy or other provisions under this Act". We have not taken it into account as a reason for coming to our conclusion.
8. Even with that limitation, the first criterion is not satisfied. Under cl 40 quoted earlier, the supply by the owner under the written agreement to the occupant was "the land only", reinforcing the earlier description of what was granted as a right of occupation being "cleared land only". The subject of the agreement was therefore the land, not anything which could qualify as "premises", let alone premises "used or intended to be used as a residence". Land alone could not qualify, as the words in parentheses in the definition of "residential premises", following "premises or part of premises", in themselves made clear. In order to qualify, the land had to be an adjunct or ancillary to or included with the premises, and in this case there were no qualifying structures as premises that were the subject of grant of the right to occupy. That was borne out by the photographic evidence as well as the common ground between the parties mentioned earlier. This is consistent with established authority: May v Ceedive PL [2006] NSWCA 369 at [76]- [86] and authority there cited.
9. There was no need to refer to the note to come to this conclusion but the secondary material such as the note, under s 34(1)(a) of the Interpretation Act 1987 (NSW) can legitimately be used to reinforce the meaning of the statutory text by consistency with that meaning.
10. Further and irrespective of the first criterion, it was common ground, in respect of the written agreement, that the owner did not supply or own and was otherwise not entitled to the premises or any structure on the land.
11. We note that there was no suggestion that RTA s 9(1) applies: "An agreement or arrangement under which a person is given the right to occupy premises for the purpose of a residence in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment is taken to be a residential tenancy agreement". At PR [29]-[30] the primary member noted that the occupant put forward a set-off defence or counter-claim that she was owed wages under a separate employment agreement with the owner. The owner denied such an agreement and the primary member said that such an agreement was beyond the Tribunal's jurisdiction to determine. Whether or not that last conclusion was correct, it was clear that the owner was not advancing a case that the written agreement between the parties contained the type of agreement or arrangement contemplated by s 9. In any event, even if otherwise made out there were no relevant premises supplied by the owner, for reasons just given.
12. That the agreement was couched in language of residential tenancy cannot change the substance of the transaction.
13. The authority referred to by the owner, YBOS PL t/as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284, did not deal with the relevant definitions, being in the context of a rule in a residential community under the Residential (Land Lease) Communities Act 2013 (NSW) where it appears that the nature of the residence rights was not the focus.
14. For the foregoing reasons, separately or in combination, the subject of the written agreement between the owner and the occupant was not "residential premises" as defined in the RTA and so there could not be a "residential tenancy agreement" within the meaning of and subject to that Act.
15. The Tribunal accordingly lacked jurisdiction to hear and determine the owner's claim and to grant the relief that it did, and that question of jurisdiction was properly the subject of an ancillary decision and appellate review. No other basis for application of the RTA was suggested.
16. Further, before us the occupant at least implicitly applied for a declaration under RTA s 11 and is entitled to it.
17. The owner is not prevented from pursuing the outstanding issue of rent arrears in an appropriate forum with jurisdiction, such as the Local Court.
18. We understand and can sympathise with the owner's contention that this point could have been reached much earlier and with less outlay of time and effort if the jurisdiction issue had been raised in a timely manner. The owner also alleged that the occupant had brought other NCAT proceedings in reliance on the RTA jurisdiction being available. Unfortunately for the owner, absence of jurisdiction is not something that can in itself be disregarded in respect of particular proceedings.

(1) Note that the appellant now nominates her surname as Press and amend the name of the appellant accordingly.

(2) Join Susanne Henrksson as an additional respondent to the appeal.

(3) Appeal allowed.

(4) Set aside the orders made in 2025/00098952 on 10 July 2025 for lack of jurisdiction in the Tribunal to make them and in lieu thereof make the following orders:

(1) Join Susanne Henrksson as an additional respondent to the primary proceedings.

(2) Declare, pursuant to the jurisdiction granted by s 11 of the Residential Tenancies Act 2010 (NSW), that the written agreement dated 23 February 2024 between the appellant and the respondent is not a residential tenancy agreement to which the said Act applies.

(3) Otherwise dismiss the application for absence of jurisdiction to hear and determine the relief claimed therein.

(4) Note that the appellant had already vacated the premises before the hearing of this appeal.

(5) Note that the Appeal Panel was advised at the appeal hearing that the parties had entered into a private agreement concerning occupation fee after 10 July 2025 and removal of the appellant's property from the land in question.

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.

19 November 2025 - Numbering in coversheet and body of decision corrected