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[2026] NSWCA 41
respondent. Leave to appeal refused; the applicant was ordered to pay the respondent’s costs.
The Court of Appeal did not reconsider the underlying tenancy dispute on its merits. Because the amount was below the statutory threshold, the applicant needed leave to appeal. His proposed appeal relied mainly on issues that had not been raised before the judge whose decision he sought to challenge, and those issues required factual investigation. The Court found no qualifying reason to allow a further appeal. Leave was refused, and the applicant was ordered to pay the respondent's costs.
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1,902 words · generated 08/10/2026
This was an application for leave to appeal, not a full appeal in which the Court of Appeal reconsidered the tenancy dispute from the beginning. The applicants were Hakija Sinanovic, the tenant, and Ludan Bone, the landlord. The two-member Court of Appeal comprised Payne JA and Price AJA.
12 cited instruments linked from this judgment.
The dispute began with a residential lease executed in 2016 for a unit in Rozelle. Rent was $1,300 per week. Mr Sinanovic remained in occupation until 14 August 2020. The parties signed a further lease agreement in 2018, increasing the rent to $1,500 per week. The judgment records that Mr Sinanovic did not dispute signing that agreement ([4]-[5]).
Ms Bone began Local Court proceedings in November 2020, seeking outstanding rent and damages for repairs. After an earlier Local Court judgment was set aside and the matter remitted, the Local Court reheard it. On 11 July 2024, Brender LCM awarded Ms Bone $65,246.85, inclusive of interest ([6]-[7]).
Mr Sinanovic appealed to the Supreme Court. Leeming JA dismissed that appeal on 24 June 2025 ([11]). The Court of Appeal proceeding then concerned whether he should be given permission to appeal from Leeming JA’s decision. The proposed appeal raised matters including alleged incapacity to contract, unconscionable conduct and whether the 2018 agreement was genuinely a new lease ([41]-[45]).
The central procedural difficulty was that the proposed grounds had not been raised before Leeming JA. The Court also considered that they depended on contested facts that had not been investigated in the earlier proceedings ([42]-[45]). It refused leave and ordered Mr Sinanovic to pay Ms Bone’s costs ([60]).
The statutory threshold was the starting point. Section 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) provides that an appeal to the Court of Appeal does not lie without leave unless the matter involves a claim respecting property worth at least $100,000. The parties agreed that the case value was $65,246.85, so leave was required ([36], [39]).
The Court explained that leave in this setting is ordinarily reserved for cases involving an issue of principle, a question of general public importance, or an injustice that is reasonably clear. It relied on Be Financial, The Age Company and Cheng for that approach ([37]). It also referred to the small-claims rationale discussed in Carolan: unnecessary litigation has public and private costs, costs may be disproportionate to the amount in dispute, and the Court of Appeal’s time should ordinarily be conserved for matters meeting the stated criteria ([38]).
The proposed grounds were not simply legal arguments based on facts already determined. The Court identified three matters relied on in oral submissions: alleged lack of capacity, alleged unconscionable conduct, and evidence said to show that the 2018 lease was not a new agreement ([44]). Each presented a problem of procedure and proof. None had been raised before Leeming JA, and each involved factual matters that had not been investigated ([45]).
The Court treated the newness of those grounds as especially significant because the applicant needed leave. It stated that leave should be refused for matters raised for the first time in the Court of Appeal, particularly where evidence could have been presented before the primary judge ([43]). On capacity, it noted that the Local Court had recorded a lack of cogent evidence, and that the relevant reasoning had not been challenged before Leeming JA. On unconscionable conduct, the claim had not been pleaded or pursued and was described as heavily fact-dependent. The lease-document issue was also characterised as a factual question not properly litigated before Leeming JA ([45]).
The Court considered whether the lay advocate’s alleged lack of preparation explained the omissions. It rejected that submission in the circumstances. The judgment records that no adjournment had been sought before Leeming JA, no prejudice from proceeding on the scheduled day had been argued, and the lay advocate had capably represented Mr Sinanovic in both courts ([46]). The Court nevertheless expressly referred to making appropriate allowance for his lack of legal representation ([47]).
The result therefore did not determine whether the underlying allegations of incapacity or unconscionable conduct were true. The decision was that those grounds could not properly be investigated for the first time in this leave application, and that the required basis for leave had not been shown ([45]-[47]).
Before this decision, the relevant statutory position was that an appeal to the Court of Appeal required leave where the claim fell below the $100,000 threshold in s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) ([36]). The judgment described the established leave considerations by reference to Be Financial, The Age Company and Cheng: an issue of principle, a question of general public importance, or reasonably clear injustice ([37]).
The Court also placed those criteria in the practical context of small claims. It cited s 60 of the Civil Procedure Act 2005 (NSW), which directs that court procedure should resolve issues in a way that makes costs proportionate to the importance and complexity of the dispute. The judgment noted that further appellate costs may weigh heavily against leave where trial costs already exceed the amount in dispute ([39]-[40]).
This decision’s contribution, as shown by its text, is an application of those principles to proposed grounds that had not been argued below and required fact-finding. It emphasises the importance of raising and evidencing factual grounds at the appropriate earlier stage, especially where a further appeal itself requires leave ([42]-[47]). It does not announce a new test for leave or decide the substantive legal merits of the proposed contract doctrines.
The judgment does not describe any change to the legal position after this decision, nor does it identify later decisions applying it. The supplied judgment therefore supports describing its reasoning as an application of existing leave and appellate-procedure principles, rather than as a stated alteration of the law.
At [36], the Court states that leave was necessary because the case value was below $100,000. In plain English, the size of the claim affected access to a further appeal: the applicant could not proceed as of right.
At [37], the Court describes the usual grounds for granting leave: an issue of principle, a question of general public importance, or reasonably clear injustice. This means that showing a decision is arguable is not, by itself, enough in the small-claims setting described by the Court.
At [43], the Court says that a party will ordinarily be refused permission to rely on a point not raised at the hearing below. It adds that this principle has particular force where the new matters could have been supported by evidence before the primary judge. In practical terms, the Court was concerned both with the timing of the arguments and with the missing factual record.
At [45], the Court explains why the three central new matters could not properly be considered as appellate grounds. It characterised the capacity issue as unsupported by cogent evidence in the earlier proceedings, the unconscionability allegation as fact-dependent and not previously pursued, and the question about whether the 2018 lease was a new agreement as a factual matter not previously litigated before Leeming JA.
At [47], the Court concludes that no issue of principle, public importance or reasonably clear injustice had been shown. This is the direct explanation for refusing leave. It is not a finding that every factual allegation was false; it is a finding that the leave threshold was not met on the case presented.
Finally, [60] records the formal orders: leave refused and the applicant to pay the respondent’s costs. Those orders disposed of the application.
The decision is relevant where a party seeks leave to appeal in a NSW Court of Appeal matter involving a claim below the statutory monetary threshold. The judgment specifically addresses a claim valued at $65,246.85 and applies s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) ([36], [39]).
It is also relevant where proposed appellate grounds were not presented to the judge whose decision is being challenged. The Court emphasised that the problem is more acute when the omitted grounds depend on disputed facts and could have been supported by evidence below ([43]-[45]). Examples in this case included alleged incapacity and unconscionability, and a dispute over what the 2018 lease represented.
The judgment also addresses the position of an unrepresented litigant assisted by a lay advocate. It records that the Court made allowance for the lack of legal representation, but found that this did not overcome the absence of qualifying grounds for leave in the circumstances ([46]-[47]). It does not establish that self-represented litigants can never raise a new ground; its reasoning is tied to the leave threshold, the factual gaps, and the procedural history described.
The decision is less directly about the substantive law of residential tenancy, contractual capacity, unconscionable conduct or non est factum. Those matters appear in the proposed grounds and written statements, but the Court did not conduct a full merits determination of them ([41]-[59]).
The judgment is dated 26 March 2026 and the supplied text contains no discussion of later decisions applying, distinguishing or criticising it. It would therefore be unsupported to describe a later line of cases or claim that a subsequent court has adopted or limited its reasoning.
The judgment itself relies on earlier authority. It cites Be Financial, The Age Company and Cheng for the ordinary leave criteria ([37]); Carolan for the rationale behind leave requirements in small claims ([38]); Bird for the principle concerning points not raised below ([43]); and Chalik when addressing allowance for an unrepresented litigant ([47]). These authorities are part of the Court’s stated reasoning in this decision, rather than later treatment of Sinanovic v Bone.
For research purposes, the judgment’s potential significance lies in how it applies those authorities to a proposed appeal presenting new factual issues. Any assessment of subsequent treatment would require later judgments not included in the supplied material.
The Court did not decide the substantive truth of the applicant’s allegations about capacity, unconscionable conduct or whether the 2018 lease was a new agreement. It refused leave because those matters had not been raised before Leeming JA and required factual investigation ([42]-[47]). Their merits therefore remain outside the determination made in this judgment.
The decision also does not define the precise limits of the allowance to be made for an unrepresented litigant. It states that appropriate allowance was made in this case and then explains why the circumstances did not establish an arguable error ([46]-[47]). The judgment does not formulate a general test for how that allowance should operate in other procedural settings.
Nor does it resolve how a court should assess a future application where a proposed new ground is predominantly legal, rather than fact-dependent, or where the party can show that the issue could not reasonably have been raised below. The Court’s stated reasoning concerns grounds that were not raised and required factual investigation ([43]-[45]).
Finally, the judgment does not consider later treatment of its reasoning. The supplied text gives no basis to determine whether later courts have applied or refined the decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sinanovic v Bone [2026] NSWCA 41
Hearing dates: 24 March 2026
Date of orders: 26 March 2026
Decision date: 26 March 2026
Before: Payne JA; Price AJA
Decision: (1) Leave to appeal refused.
(2) Applicant to pay the respondent’s costs.
Catchwords: APPEAL — Application for leave to appeal — Appeal from Supreme Court — No question of general principle — No question of public importance — Where amount in issue less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Local Court Act 2007 (NSW), ss 39, 40
Supreme Court Act 1970 (NSW), s 101(2)(r)(ii)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Chalik v Chalik [2025] NSWCA 136
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
IIB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Muriniti v Kalil [2022] NSWCA 109
O’Meara v Adams (No 2) [2021] NSWSC 1167
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sinanovic v Bone (No 2) [2025] NSWSC 652
Sinanovic v Bone [2022] NSWSC 1474
Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76
The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wood v Firth [2013] NSWSC 845
Category: Principal judgment
Parties: Hakija Sinanovic (Applicant)
Ludan Bone (Respondent)
Representation: Counsel:
Ms Sinanaj (Lay Advocate by leave)
Ms B Oliak (Respondent)
Solicitors:
YW Lawyers (Respondent)
File Number(s): 2025/00276179
Publication restriction: None
THE COURT: This is an application for leave to appeal from a 24 June 2025 decision of Leeming JA (sitting at first instance in the Common Law Division: Sinanovic v Bone (No 2) [2025] NSWSC 652).
The underlying dispute relates to a sum of $65,246.85 found in the Local Court to be owing under a lease agreement by the applicant, Mr Sinanovic, to the respondent, Ms Bone. For the same reasons as given by Leeming JA, that no reason was shown why the grant of leave to a lay advocate to appear for the applicant in this Court on appeal should be less freely available than in the Local Court at trial, we permitted the applicant to be represented by a lay advocate, Ms Sinanaj, in this Court.
For the reasons that follow, no arguable error has been shown in the decision of Leeming JA and leave to appeal is refused with costs.
In 2016 the parties executed an agreement under which the applicant leased a residential unit in Rozelle from the respondent. The term of the lease was 16 December 2016 to 15 December 2017. The rent payable was $1,300 per week.
The applicant continued to occupy the Rozelle unit until 14 August 2020. A further lease agreement was signed by both parties in 2018. That lease agreement increased the rent from $1,300 to $1,500 per week. The applicant does not dispute that he signed the 2018 lease agreement.
On 4 November 2020, the respondent commenced proceedings in the Local Court against the applicant seeking payment of outstanding rent following the termination of the tenancy. Damages to make good the premises were also sought. The matter was first heard by Hosking LCM on 9 November 2021 and 11 March 2022. On 11 March 2022, judgment was given in favour of the respondent. On 26 October 2022, Garling J set aside that decision and remitted the matter to the Local Court: Sinanovic v Bone [2022] NSWSC 1474.
On 13 December 2023 and 19 June 2024, the matter was heard by Brender LCM. Near the end of the day on 13 December 2023, the magistrate directed re-examination to occur by way of affidavit and ordered an exchange of written submissions in January and February 2024. The purpose of his Honour doing so was to avoid a significant delay occasioned by scheduling another hearing day. The applicant, in the event, made an application to reopen, which resulted in a further hearing day on 19 June 2024 at which evidence was given by both parties. Judgment was reserved on 19 June 2024 and delivered on 11 July 2024. On 11 July 2024, Brender LCM found in favour of Ms Bone in the amount of $65,246.85 inclusive of interest. On 26 July 2024, Brender LCM ordered Mr Sinanovic to pay Ms Bone’s costs of the proceeding, but the order did not extend to costs referable to the first hearing.
- Bias: The Magistrate's conduct was of apprehended bias later confirmed in his Decision.
2. Unfair procedure: The Defendant's special needs were not addressed due to his disability having Parkinson's Disease, not been provided with a hearing loop and is illiterate in the English language.
- Denial of a Fair Hearing: The Magistrate erred by failing to be impartial with his conduct benefitting the Plaintiff's legal representatives at the cost of not allowing procedural fairness to the Defendant.
- Abuse of Process: The Magistrate erred by not dealing with matters of concern raised by the Defendant.
- Matters of law and facts: His Honour erred when he failed to consider relevant facts pertaining to evidence by the Defendant before making a finding the disputed lease of 21/3/2018 was valid under s17 of the RTA. Those facts do not support s17. The facts do not support the findings of awarding costs of repairs to the premises. Further relevant facts found were not considered by His Honour.
- Denied the right to be heard and determined: The Magistrate erred in not allowing the defendant to be heard in open court, open legal argument and determination incurring unnecessary delay and costs. No notice received yet as to the decision on Costs which was set down for decision on 26/7/24.
“(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.”
“(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court:
(a) an interlocutory judgment or order,
(b) a judgment or order made with the consent of the parties,
(c) an order as to costs.”
“The position was stark, and quite different from that confronting the judge earlier this year when Ms Sinanaj’s application was heard. The position before me was that if Ms Sinanaj were not permitted to appear, either there would be an adjournment and costs unnecessarily increased in litigation where costs already exceeded the amount at stake, or there would be a less than satisfactory hearing, which might or might not finish in a day.”
“There is no reason not to accept the rationale stated by the Magistrate at the time, namely, that this course was a fair, efficient way to conclude the evidence.”
His Honour found that there was only advantage to Mr Sinanovic in the course adopted by the magistrate because it provided more time for consultation and preparation. The course adopted was potentially prejudicial to Ms Bone, who lost the ability immediately to object to questions asked of Mr Sinanovic. Ms Bone was also denied her entitlement that Mr Sinanovic be held to the answers he gave to non-leading questions in re-examination.
Leeming JA rejected a submission that Mr Sinanovic was denied a public forum to vindicate his case. His Honour explained there is “no unfettered entitlement to a litigant or witness to give oral evidence in a court” at [36]. Leeming JA concluded on this group of issues at [38]:
“I have not overlooked the fact that ground 1 as formulated contends that the conclusion of apprehended bias was “later confirmed in [the Magistrate’s] Decision”. This latter submission is bad in law.”
Before the primary judge, Mr Sinanovic raised two further matters which were said to amount to, or contribute to, a failure of the magistrate to accord procedural fairness:
Failure to ensure that a subpoena was complied with. On 15 December 2021 during the first Local Court trial, Ms Bone sought and obtained a subpoena requiring the former property manager of the premises to produce documents, and on the second day of the first court hearing Ms Bone indicated they were still to be produced. Mr Sinanovic contended all relevant material needed to be available as a matter of procedural fairness, and the documents not produced would have assisted him in making his case; and
The magistrate’s refusal to allow Ms Sinanaj to call Ms Bone’s solicitor to give evidence about the existence of documents. Mr Sinanovic said that this decision infected the rehearing because counsel for Ms Bone remained silent on the issue and put matters to Mr Sinanovic in cross-examination which, based on the material in the documents, he knew to be false.
Leeming JA rejected these submissions. First, any failure to accord procedural fairness in the first trial was irrelevant if cured by the second trial. Secondly, there was scant evidence of the factual basis supporting the complaint. Thirdly, it is not the role of the court to supervise production under a subpoena. It is for the issuing party to raise with the court and then further orders may be sought. There was no evidence that occurred here. Fourthly, the document about which complaint was made was ultimately annexed to an affidavit of Ms Cho (Ms Bone’s solicitor). Mr Sinanovic was given the opportunity to cross-examine Ms Cho about it. A subsequent argument that Mr Sinanovic was not able to cross-examine Ms Bone was tenuous at best as it was not clear Ms Bone ever saw the document. It was not her document.
Leeming JA concluded that the second argument, in particular, revealed a misapprehension about the conduct of proceedings, at [49]:
“I think Ms Sinanaj may be under the impression that she can as of right cross-examine a witness called by her; that is not the case… [I]n any event, both Mr Fasullo and his partner Ms Cho made affidavits and Ms Sinanaj did cross-examine both Mr Fasullo and Ms Cho. I am unable to see how there could be any substance to this ground.”
A separate point arose during the hearing before Leeming JA. It was asserted on behalf of Mr Sinanovic that the magistrate had said words to the effect that he had already made a decision before judgment was delivered. Leeming JA treated that as a submission that the magistrate did not bring an impartial mind to the matter: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29. Leeming JA concluded that nothing in the evidence suggested the magistrate had predetermined anything. No transcript for 30 April 2024 was provided.
Even if loose or imprecise language had been used by the magistrate about the state of the proceedings, Leeming JA found that the failure by Mr Sinanovic to apply for the magistrate to disqualify themselves thereafter meant he waived an entitlement to do so: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [76].
Over objection by Ms Bone, Mr Sinanovic was allowed to give evidence that he asked for a hearing loop on 13 December 2023. A brief cross-examination was conducted. Leeming JA concluded that the evidence was “suggestive of a witness who was not disadvantaged” at [54]. Mr Sinanovic’s evidence was that he wore a hearing aid and could understand questions asked. No prejudice was found to have been sustained by him not having a hearing loop in previous hearings. Leeming JA found that the magistrate and all participants in the hearing in the Local Court did their best to take steps so that a defendant who lacked a legal practitioner acting for him obtained a fair hearing. His Honour found that the ground was not made out.
An additional submission was made on behalf of Mr Sinanovic that procedural fairness and apprehended bias issues arose from errors in the transcript. After reviewing the entire transcript, including with annotations marked by Mr Sinanovic, Leeming JA determined the errors to be “unremarkable and utterly immaterial” at [60].
In conclusion, on procedural fairness, his Honour said at [62]-[63]:
“… Nothing in the materials made available to me suggests that what occurred was anything other than the familiar case of a busy Local Court Magistrate doing the best he could to achieve a fair hearing of a civil claim where the defendant, unassisted by legal representation, advanced a multitude of points.
For all of those reasons, I am not satisfied that Mr Sinanovic has established that there was any bias or procedural unfairness or other vitiating defect in the trial in the Local Court. Although if what I outlined above concerning the scope of the appeal is wrong there should to the extent necessary be a grant of leave, nevertheless grounds 1, 2, 3 and 6 should be dismissed.”
Documents were tendered by both sides evidencing the background to the 2018 lease agreement which increased the rent from $1,300 to $1,500. These documents, all recording a rent of $6,517.87 per month, equating to $1,500 per week, included a draft tenancy agreement from 2018 that was not signed by the tenant, and a second and third document, said by Ms Bone to be the same document, made on 16 March 2018 for a lease term of 6 months. One of the documents was in very poor condition. The only noted difference was that “2 x garages” was included in one document and not the other. The differences between these documents were not regarded as material by Leeming JA.
It was argued on behalf of Mr Sinanovic that the magistrate did not consider an unexecuted lease document. In submissions made to Leeming JA supplied on 19 June 2025 a complaint was made that the magistrate made no mention of evidence of incapacity to enter a contract. Leeming JA found that the magistrate did address capacity and decided that the magistrate correctly concluded that the evidence demonstrated capacity. Leeming JA found that, in any event, the magistrate was not asked to have regard to the unexecuted document.
It was argued on behalf of Mr Sinanovic that the signature of the agent on the 2018 agreement was not valid because the agent was not licensed. Leeming JA noted he suspected that either the agent was licensed, but under a variation of her name, or in the alternative and in any case, the document remained valid under s 17 of the Residential Tenancies Act 2010 (NSW) which was properly applied by the magistrate.
Finally, in relation to these grounds, it was submitted that there were inconsistencies in the rental ledger maintained by the agent which purportedly undermined the signed rental agreement. Leeming JA concluded that the arguments were not made to the magistrate and in any case were bad in law.
Leeming JA concluded on these grounds at [80]:
“In light of the analysis set out above, there should to the extent necessary be a grant of leave. However, these grounds must be dismissed.”
Elaborate submissions were made on behalf of Mr Sinanovic to the effect that it was improper for the magistrate to accept evidence of a quote as opposed to a receipt when assessing the quantum of damages for wall patching. Leeming JA found at [86] that “[i]t was open to the magistrate to accept that document, coupled with Ms Bone’s testimonial evidence and the lack of challenge to the document in terms, in order to find that the loss was established.”
Allegations were made on behalf of Mr Sinanovic that there was a failure by Ms Bone to comply with a court order to produce documentary evidence. Leeming JA found that the order was to provide particulars, and Ms Bone had done so at [87]: “The point of the order was to provide Mr Sinanovic with notice of this aspect of Ms Bone’s case. The submission misconceives the nature and purpose of the order, and the way in which facts are found.”
“I have not overlooked that Mr Sinanovic’s summons also seeks leave to bring a question of law “for the Supreme Court of NSW to determine in the Public Interest”, being whether it is open to a court to intervene where a party not represented by a lawyer is unable to persuade the court on matters of procedure and law because the party or the party’s lay representative is not an officer of the court.
The Court’s role is not to “intervene”. It is to determine issues raised by the parties. In an appeal such as this, that turns on the grounds of appeal. I have done so. All of the grounds and proposed grounds of appeal having been considered and rejected, there is no occasion for anything else to be said. There are separate principles applicable to unrepresented litigants (many are collected in Chalik v Chalik [2025] NSWCA 136 at [65]-[72]) and in cases where a litigant is permitted to be represented by a non-lawyer (as Mr Sinanovic had been). There is no reason for costs not to follow the event.”
Section 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) provides that an appeal to the Court of Appeal shall not lie, except by leave of the Court of Appeal, unless the matter involves (directly or indirectly) any claim respecting any property having a value of $100,000 or more. Leave is thus required here.
Ordinarily, leave to appeal to the Court of Appeal is limited to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
That is especially so where the application involves small claims. The rationale for requiring leave where the matter in issue is less than $100,000 includes (see Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P):
“(3) The discouragement of unnecessary litigation in small amounts where public costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation;
(4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake;
(5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable.”
“60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.”
“This direction has an important operation in respect of leave applications involving amounts below the statutory threshold. Where, as in the present case, the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave.”
“1. Legal error in identifying a “special disadvantage” of the appellant’s disability and illiteracy.
- Unconscientious exploitation of the appellant was miss assessed in determining the other party unfairly took advantage of the appellant.
- Not applying the ‘fair, just and reasonable’ test to determine unconscionable conduct of the other party.
- Failed to properly consider factors such as the bargaining powers of the parties; the appellant’s ability to understand the document; use of unfair tactics; whether estate agents acted in good faith;
- Failed to consider relevant evidence from the appellant to establish unconscionable conduct and non est factum.”
None of the five grounds of the proposed notice of appeal were raised before Leeming JA. The appeal before his Honour focused, almost exclusively, on alleged procedural defects in the hearing before Brender LCM. The one exception was an argument about the correct interpretation of s 17 of the Residential Tenancies Act, which does not feature in the applicant’s draft notice of appeal.
A party will ordinarily be refused permission to rely on a point not raised at the hearing below: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [38]-[39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ). This principle applies in this case with even greater vigour. The applicant requires leave to appeal and must show an issue of principle, question of general public importance or an injustice which is reasonably clear. Leave should be refused to raise matters for the first time in this Court, particularly where, as here, those matters could have been the subject of evidence before the primary judge.
In oral submissions in this Court, Ms Sinanaj, who capably assisted the applicant, relied upon three particular matters:
the applicant’s alleged lack of capacity to contract;
alleged unconscionable conduct by the respondent and her lawyers; and
what was said to be clear evidence that the 2018 rental agreement was not a new agreement, as Brender LCM found at [54]. This was alleged (in footnote 6 of the applicant’s submissions in chief in this Court) to have been demonstrated by the fact that documents were allegedly relied upon by the respondent in New South Wales Civil and Administrative Tribunal (“NCAT”) proceedings but not produced under subpoenas issued in the Local Court.
In this Court, Ms Sinanaj candidly and properly accepted that none of these matters had been raised by the applicant before Leeming JA. That concession, in and of itself, tends strongly against the grant of leave. What makes the case for refusing leave overwhelming is that each of these three matters involved contested factual investigations which had not taken place, even before Brender LCM, let alone before the Leeming JA:
As to the asserted lack of capacity to contract, Brender LCM recorded in his judgment that the applicant “points to no cogent evidence that he lacked capacity to contract…”. Leeming JA (at [68]) recorded that “No part of that reasoning was challenged during the hearing before me”. His Honour subsequently made a positive finding that later filed written submissions asserting lack of capacity must be rejected as no vitiating factor had been shown;
As to alleged unconscionable conduct, this was not pleaded or pursued before Brender LCM or Leeming JA. Proof of unconscionable conduct is heavily fact dependent. Those facts have never been investigated. To find unconscionable conduct here would be a gross departure from the rules of procedural fairness;
In a written statement dated 23 September 2025, the applicant asserted that his human rights under the International Covenant on Civil and Political Rights (ICCPR) article 14(1), the Australian Constitution, and the “UNHR Convention on the Rights of Persons with Disabilities” were infringed by the decision of Leeming JA (and the Local Court, and NCAT).
No basis was explained for how it was that any of these assertions could possibly be made out and how, if made out, they demonstrated any arguable error in the decision of Leeming JA.
The applicant asserted that it was an error of law “to not allow Mr Sinanovic to rely upon the plea of NON EST FACTUM which would invalidate the disputed Residential Lease Agreement signed 21 March 2018”.
No claim was made to Leeming JA that a plea of non est factum was available. No basis was explained for how it was that this claim, if made out, demonstrated any arguable error in the decision of Leeming JA. Leeming JA found that “it was necessary for Mr Sinanovic to do much more than he has so as to establish some vitiating factor to warrant departure from the ordinary significance of a signature on a legal document” at [71]. No arguable error in this conclusion has been shown.
The applicant asserted that the award of damages for the respondent’s losses was erroneously granted “in the absence of any evidence proven of any such loss” and that doing so “falls with bias and beyond their judicial power”. No basis for this claim was demonstrated. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.
The applicant also complained about costs of the notice of motion and hearing before Faulkner J on 21 February 2025. This was not a matter before Leeming JA and is not a matter properly before this Court.
A further written statement dated 24 November 2025 reiterated the arguments above of “failure to apply the doctrine” of unconscionable conduct and non est factum. As we have explained, the potential application of these doctrines raise factual issues which have not been investigated. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.
Two additional, but apparently related, arguments were advanced:
The court erred in not applying the “fair, just and reasonable” test in determining whether the 2018 lease agreement was fair “notwithstanding the rent asked was excessive at the time”.
“There is an error of law where despite the applicant’s evidence supported … unjust contract, the evidence provided by the applicant was given no weight at all” (emphasis in original).
It may be by use of the term “unjust contract” the applicant intended to refer to unfair or unjust contracts within the meaning of the Contracts Review Act 1980 (NSW). This was not a matter raised before Leeming JA and is not a matter properly before this Court. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown. Leave should be refused to raise it for the first time in this Court.
On 6 March 2026, a further written statement was filed by the applicant. A large proportion of the material included with that document refers to the first Local Court proceedings that were set aside by Garling J’s order on 26 October 2022. The applicant’s submissions assert:
The purported incapacity of the applicant on signing the 2018 rental agreement and that the case referred to by the Supreme Court in its decision, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, had been improperly applied leading to an “error of law”. At the risk of repetition, Leeming JA’s finding that Mr Sinanovic failed to establish some vitiating factor to warrant departure from the ordinary significance of his signature on a legal document has not been shown to be arguably incorrect.
The cost of litigation — that the applicant should have “been granted his opportunity to be heard and determined in NCAT in his application RT 19/22489 dated 14 May 2019”.
That the “proposed appeal is a matter of public importance”, as it “affects many people with disabilities” who are “faced with uncertainty and fear in entering contracts” and “face prejudices within the judicial system”.
These assertions are reiterations of complaints earlier dealt with. They were not matters raised before Leeming JA. No issue of principle, question of general public importance or an injustice which is reasonably clear has been shown.
The orders of the Court are:
Leave to appeal refused.
Applicant to pay the respondent’s costs.
*********
Sinanovic
Bone [2026] NSWCA 41
(2024) 98 ALJR 1349
(2021) 273 CLR 289
(2022) 108 NSWLR 342
(2011) 244 CLR 427
(2020) 102 NSWLR 490
(2013) 82 NSWLR 268
(2004) 219 CLR 165
(2014) 86 NSWLR 527
Leave to appeal refused; the applicant was ordered to pay the respondent’s costs.
As to the allegedly “clear evidence” that the 2018 rental agreement was not a new agreement, this was not litigated before Leeming JA. This is quintessentially a question of fact. Those facts have not been properly investigated and it would be inappropriate to grant leave to investigate those facts in this Court.
To the extent that Ms Sinanaj in this Court complained that her lack of proper preparation explained the omission to litigate these matters before Leeming JA (and that the applicant was denied procedural fairness by Leeming JA), we reject that submission. No such submission was contained in her extensive written submissions. Ms Sinanaj properly and forcefully represented the applicant’s interests before Leeming JA and in this Court. She successfully applied for leave to appear for the applicant as a lay advocate before Leeming JA and in this Court. No application for an adjournment was made to Leeming JA. No submission was made that there was any prejudice to the applicant in proceeding to hear his appeal on the day it was fixed before Leeming JA. As we have said, a fundamental obstacle in pursuing these matters was, in any event, the fact that the underlying facts had not been properly investigated.
It was not, even arguably, an error by Leeming JA to fail to deal with grounds of appeal not put to him. Making appropriate allowance for the applicant’s lack of legal representation (Chalik v Chalik [2025] NSWCA 136 at [69]-[72] and the cases referred to therein), no issue of principle, question of general public importance or an injustice which is reasonably clear has been shown. Leave to appeal to consider grounds not put to the primary judge should be refused.
For completeness, we will address three documents that characterise themselves as “written statement[s] in support of application for leave to appeal” filed by the applicant, despite the fact that they appear to travel way beyond the matters properly before this Court.