Raffoul v Wong

1. The appellants appeal from both of these orders.
2. The appellants are mother and daughter. Respectfully, as a matter of convenience, we will refer to the mother as Mariam and to the daughter as Marie. Marie appeared for the appellants at the hearing of the appeal. It was uncontroversial that Mariam, who is elderly, was not in a fit state of health to appear at the hearing of the appeal or at the hearing on 19 June 2025.
3. The appellants were the tenants of the respondents' property under a residential tenancy agreement that on 23 December 2024 was ordered to be terminated for the non-payment of rent. On that date, the Tribunal also ordered that rental arrears in the amount of $1,830.00 were to be paid, along with an occupation fee of $95.00 per day from the day after termination, namely from 24 December 2024, until the date of vacant possession.
4. The sum of $3,460.00 ordered to be paid on 19 June 2025 was in respect of unpaid occupation fees due and owing under the order for the payment of an occupation fee made on 23 December 2025.
5. The appeal was lodged within time on 17 July 2025.
6. For the reasons set out below, we have decided that the appellants' application for leave to appeal should be refused and that the appeal should be dismissed.

1. The set aside refusal decision was made pursuant to Clause 9 of the Civil and Administrative Tribunal Regulation 2014.
2. Clause 9, relevantly, provides:

9 Additional power to set aside or vary decision determining proceedings

(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances -

.....

(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.

.....

(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first -

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

1. Set aside applications under Clause 9 are usually determined on the papers. A hearing is not required: Regulation 9 (8) of the Civil and Administrative Tribunal Regulation 2013 and s 50 (1) (d) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. As appears from the terms of cl 9, before the Tribunal has the power to set aside a decision that determines proceedings, the Tribunal must be satisfied that:

(1) The decision was made in the absence of a party; and

(2) That absence resulted in the party's case not being adequately put to the Tribunal.

1. As held in Hammond v Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales [2015] NSWCATAP 65 (Hammond), if those two requirements are satisfied, the Tribunal then has a discretion to set aside or vary the decision. The central question in that regard is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand: Hammond at [76]. Relevant considerations would include why the party was absent and whether that party had a reasonable opportunity to be heard or have its submissions considered in the proceedings, and whether the absent party had an arguable defence or an arguable case that a different decision could have been reached: Hammond at [78]-[80].

1. The set aside decision was an ancillary decision of the Tribunal within the terms of s 80 (2) (b) of the (NCAT Act): see Hammond.
2. Section 80 (2) (b) of the NCAT Act provides:

80 Making of internal appeals

....

(2) Any internal appeal may be made -

....

(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. Accordingly, the appellant had a right of appeal on a question of law but otherwise required leave to appeal. Because the appeal was from a decision of the Consumer and Commercial Division a grant of leave to appeal could only have been made if the appellants satisfied the conditions in clause 12 (1) of Sch 4 of the NCAT Act.
2. A question of law will arise where a real question arises as to whether the Tribunal failed to take into account relevant (mandatory) considerations.
3. Clause 12(1) of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSAWCATAP 17_,_ the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

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

(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. The set-aside decision is also a discretionary decision. Accordingly, we have also had regard to the principles in House v King [1936] HCA 40; 55 CLR 499.

1. The Tribunal provided written reasons accompanying the orders made on 11 July 2025.
2. In [2] of those reasons it stated that both parties had made written submissions in support of the application, having been given the opportunity to do so in correspondence with the Tribunal.
3. Having stated that it was bound by the decision in Hammond, in [7] the Tribunal referred to the absence of the appellants at the hearing on 19 June 2025. It referred to Marie's statement that she did not attend the hearing because she was unwell and that for this reason an adjournment had been applied for before the hearing but it had been refused. It also referred to the Tribunal giving the appellants the opportunity to attend the hearing on 19 June 2025 by AVL.
4. In [8], the Tribunal said: "the tenant Ms Marie Raffoul again relies on the same reason for non-attendance. She has submitted a medical certificate." Plainly, the Tribunal was addressing the set-aside application itself and understood that Marie had submitted one medical certificate in support of the set-aside application.
5. In [9], the Tribunal made further reference to the absence of the appellants at the hearing on 19 June 2025. It said that the "tenant" had been sent a link to appear virtually but did not appear. It accepted that Mariam could not appear and that Marie "has again provided an insufficient medical certificate in respect of herself that does not sufficiently comply with the Tribunal's guidelines for seeking the adjournment in such circumstances." It went on to refer to relevant authorities concerning this issue.
6. In conjunction with [8], the language of "has again" suggests that the Tribunal was aware of another medical certificate relied upon by the appellants in support of the set-aside application separate from the medical certificate unsuccessfully relied upon in support of an attempt to adjourn the hearing on 19 June 2025 (see further below). The Tribunal did not speak in terms of the same medical certificate. Furthermore, it would have been somewhat odd for the appellants to be relying upon the same medical certificate that they had used for the purpose of the unsuccessful adjournment application in respect of which the Tribunal had expressed clear reasons as to why it was inadequate in an email to the parties sent at 1:41 PM on 19 June 2025.
7. In [10] and [11], the Tribunal referred to relevant matters of law, including section 36 of the NCAT Act and an account of relevant aspects of the decision in Hammond.
8. As to the question why the appellants were absent, in [13] the Tribunal said that "As explained above, The Tribunal does not accept the tenant's reasons for not attending".
9. The Tribunal then turned to the question whether the absent party had an arguable defence or an arguable case that a different decision could have been reached. It addressed this issue at [14]-[19]. The Tribunal said that the appellants wanted to dispute the occupation fee calculation. It referred to the respondent's submission that the question as to the amount of the rental arrears (in the sum of $1,830) had already been determined in previous proceedings, the Tribunal had appropriately calculated the occupation fees owing to 28 February 2025, less any payments made and that the Tribunal had not accepted the tenant's documentary evidence regarding the claimed earlier vacation date.
10. In [16] the Tribunal stated that it did not accept that there was anything that substantiated the contention that the final occupancy fees owing had been miscalculated. In [18] it said that the 'tenant' wanted another chance to attend and have her say and that that was not a sufficient reason for the set-aside application to be granted. It considered that the case the "tenant' sought to put had little, if any, merit. In [19] the Tribunal said that there was no evidence that persuaded it that any further hearing of the matter might lead to a different situation. It concluded that "... Although the orders were made in the absence of the tenant and the Tribunal is satisfied that the party's absence may have resulted in their case not being adequately put to the Tribunal, in the exercise of discretion the Tribunal was not satisfied that there is a real likelihood that it would be unjust to let the decision stand."

1. In the Notice of Appeal, the appellants set out six grounds of appeal, which can be fairly summarised as follows:

(1) The Tribunal failed to consider a medical certificate submitted to the Tribunal on 29 June 2025.

(2) The Tribunal refused to set aside the orders even though the appellants were never given the chance to verbally explain critical details of the case, including the fact that the occupation fee amount was incorrect.

(3) The Tribunal found the amount of $3,460 occupation fee as owing even though the inconsistencies and errors had been disputed in writing and even though this amount was some $300 more than the landlord's own calculation.

(4) It was unjust to make financial orders against Mariam in circumstances where it accepted that she could not attend the hearing due to her disability and vulnerable status.

(5) No reasonable consideration was given to the financial hardship of the appellants, particularly, in making the order that the amount be paid within 6 days.

(6) There was a pattern of unfairness against the appellants, having regard to previous matters in the Tribunal.

1. In the principal written submissions of the appellants dated 24 September 2025 (filed on 16 October 2025) the appellants confined their grounds of appeal to four grounds as follows:

(1) A failure to hear from Mariam.

(2) Refusal to consider timely material medical evidence.

(3) Failure to consider financial hardship and vulnerability in respect of the order for the payment of the sum within 6 days.

(4) Occupational fee miscalculation and failure to resolve contested evidence in relation to it.

1. Having regard to this narrowing of the grounds of appeal, we can, quickly, reject the second and sixth stated grounds of appeal in the Notice of Appeal which were not advanced in the written submissions. In any event, there was no substance to either of those grounds. As to the second ground, there was no suggestion that the Tribunal was incorrect to say that written submissions had been received from both parties in respect of the set-aside application. That provided a sufficient opportunity to be heard on that application. As to the sixth ground, this contained no recognisable ground of appeal.
2. Furthermore, the contention of error because Mariam was not heard from can also be rejected, quickly. To the extent this was a contention of error in respect of the refusal of the set-aside application, this is because the reasonable opportunity to be heard on the set-aside application was provided by the opportunity to present written submissions. That opportunity was provided to both appellants.
3. On the other hand, to the extent that this was a contention of error in respect of the decision made on 19 June 2025 which was said to be relevant to the challenge to the refusal to set aside decision, it is clear that it was the opportunity for Marie (not Mariam) to be heard that the Tribunal relied upon. That this is so appears from the Tribunal's reasons for rejecting the adjournment application set out in its email to the parties sent at 3:13 p.m. in which the Tribunal stated that Marie had provided additional information regarding the capacity of Mariam to appear and that the Tribunal accepted that Mariam did not have the capacity to represent the appellants at the proceedings.
4. As to the ground of appeal that there was a failure to consider the medical certificate sent to the Tribunal on 29 June 2025 in support of the set-aside application, which we are prepared to accept does raise a question of law, as outlined in paragraphs [25] to [27] above, we are not satisfied that the Tribunal did fail to consider this second medical certificate. We expand upon our reasoning below.
5. The first medical certificate submitted to the Tribunal shortly before the hearing on 19 June 2025 had been found by the Tribunal to be insufficient for the purpose of the appellants' adjournment application made about one hour and 40 minutes before the hearing scheduled at 2:45 PM that day. The inadequacy had been explained in an email from the Tribunal to the parties sent at 1:41 PM on 19 June 2025 in which an important relevant case authority was cited, including a relevant passage from that case. Clearly, the medical certificate was inadequate for the reasons stated in the email.
6. A second medical certificate from the same doctor, also dated 19 June 2025, was sent to the Tribunal for the purpose of the set-aside application by an email to the Tribunal sent on Sunday, 29 June 2025 at 11:15 p.m. This was sent a few days after the set-aside application itself had been lodged with the Tribunal on 26 June 2025.
7. In the email sent on Sunday, 29 June 2025, Marie stated that she realised she may not have included this second medical certificate with her set-aside application. She said that it was issued by the same doctor on the same day and she had requested this certificate after being told that a more detailed explanation was required. In the email she asked that the Tribunal accept this additional certificate as part of the documents supporting her set-aside application.
8. Receipt of Marie's email attaching the second certificate was acknowledged later that Sunday evening in an automated response.
9. We are therefore not satisfied that the Tribunal failed to consider that second medical certificate. Moreover, we consider that it was reasonably open to the Tribunal to conclude that this second certificate was insufficient. In the interests of privacy we do not set out the terms of the second medical certificate. It is sufficient to say that it included some detail as to why the doctor considered Marie was "unfit" and "should be allowed absence for the dates between 19/06/2025 and 19/06/2025 inclusive, due to ...." However, this did not, specifically, address inability to attend the Tribunal hearing, in particular, a hearing by video or telephone, which came to be permitted for the hearing on 19 June 2025, which was adjourned until 3.30 pm to allow this to occur.
10. Accordingly, we do not accept this ground of appeal.
11. In any event, even if we had been satisfied that the Tribunal had failed to consider the second medical certificate, for the reasons set out below, we would have disallowed the appeal because of the appellants' failure to show that they had an arguable basis to show that the money order made on 19 June 2025 was wrong.
12. As to the grounds of appeal concerning the existence of an arguable defence (we take ground three in the Notice of Appeal and ground four in the submissions as concerned with this issue), we do not accept that the appellants have shown that the Tribunal made any error of law or fact in its assessment of this question.
13. In the set-aside application one of the matters raised by the appellants was that there was "Rent Ledger Misrepresentation" (point 4 of Section E (ii)) but this was outlined in general terms only and also did not take account of the fact that the rental arrears outstanding at the time of termination had already been determined in the Tribunal's decision made on 23 December 2025.
14. Again, the same problem affected the appellant's submission concerning an incorrect occupational fee start date (point 1 of Section E (ii)).
15. The appellants also contended that they would have shown to the Tribunal on 19 June 2025 that the occupation fees outstanding should not have included a fee for 28 February 2025 because they were evicted at 9am that day. However, we disagree. The fee had been incurred by occupation which continued after midnight on 27 February 2025.
16. The appellants also pointed to the weekly cycle of the tenancy which commenced on a Thursday. However, this has no impact upon the occupation fee calculation made by the Tribunal on 19 June 2025, which commenced from the day after the date of termination.
17. Accordingly, we reject these grounds of appeal concerning the decision of the Tribunal in the set-aside application about an arguable defence on the merits.
18. We turn now to the ground of appeal that the Tribunal, in making the 19 June 2025 decision requiring payment within six days, failed to take into account considerations of financial hardship. The appellants did not show that there was any particular material evidence that the Tribunal disregarded, or otherwise show that there was some plain error or clear unreasonableness in arriving at that aspect of the decision.
19. Overall, insofar as the appellants sought leave to appeal, for the above reasons the appellants failed to show that the Tribunal made some error of principle or was more than arguably wrong in deciding to refuse the application to set aside the 19 June 2025 decision.

(1) For the above reasons, we order that the application for leave to appeal is refused and that the appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.