Song v Dickson (No 2)

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Australian Press Council Inc v Southey [2022] NSWCATAP 127

Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

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

Donohoe v Albulario [2025] NSWSC 9

FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127

Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198

Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158

Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240

Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139

Song v Dickson [2025] NSWCATAP 82

Udy v Barton [2025] NSWCATAP 117

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

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

YKW v Public Guardian [2025] NSWCATAP 112

1. Bo Whoa Song (the Appellant) brings two appeals against decisions of the Tribunal in the Consumer and Commercial Division (the Tribunal at first instance).
2. The decisions of the Tribunal at first instance concern the termination of a residential tenancy agreement (the Tenancy Agreement) between the Appellant and Greg Dickson (the Respondent). Under the Tenancy Agreement, the Appellant leased premises of the Respondent at Kingsford NSW (the leased premises).
3. For the following reasons, we have decided to dismiss both appeals.

1. The Respondent served a notice of rent increase on the Appellant on 16 July 2024 with effect from 13 August 2024
2. In an email to the Respondent's agent on 13 August 2024, the Appellant indicated that she thought the rent increase was excessive. However, she said that she would be prepared to pay the increased rent from 17 September 2024 if the Appellant carried out specified repairs on the leased premises (the Appellant's August 2024 Repairs Request).
3. For completeness, we note that the Appellant was successful in April 2025 in her appeal against certain decisions of the Tribunal refusing rent reductions and compensation (the Previous Tribunal Repair Proceedings) because of failures by the landlord of the leased premises to carry out specified repairs: Song v Dickson [2025] NSWCATAP 82. The Appeal Panel in that appeal remitted those decisions for reconsideration by the Tribunal.
4. On 14 August 2024, the Respondent served the Appellant with a notice (the Termination Notice) purportedly given under s 85 of the Residential Tenancies Act 2010 (NSW) (RT Act). The Termination Notice required the Appellant to vacate the leased premises by 15 November 2024.
5. At the time the Termination Notice was given, s 85 of the RT Act provided as follows:

85 Termination of periodic agreement - no grounds required to be given

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(2A) Despite subsection (2), in the case of an employee or caretaker residential tenancy agreement, the termination notice must specify a termination date that is -

(a) on or after the end of the period of notice for termination agreed to by the landlord and the employee or caretaker in that agreement or arrangement, or

(b) not earlier than 28 days after the day on which the notice is given,

whichever is the later date.

(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

1. The term "periodic agreement" is defined to mean a residential tenancy agreement that is not a fixed term agreement: RT Act, s 3(1) (definition of "periodic agreement"). The term "fixed term agreement" is defined to mean a residential tenancy agreement for a tenancy for a fixed term: RT Act, s 3(1) (definition of "fixed term agreement").
2. Section 85 of the RT Act was repealed and replaced on 19 May 2025. This was the result of the commencement of reforms to the grounds for terminating residential tenancy agreements (the tenancy termination reforms) made by Sch 1 to the Residential Tenancies Amendment Act 2024 (NSW). The law in force at the time that a termination notice was given continues to apply in relation to a notice given before 19 May 2025: RT Act, Sch 2, cl 36. Consequently, former s 85 and the other provisions of the RT Act that were applicable to the Termination Notice at the relevant time continue to apply to the determination of the issues before us.
3. Section 85 of the RT Act (as in force before the tenancy termination reforms) was one of the provisions of the Act that conferred on a landlord a "no grounds" right to terminate a residential tenancy agreement. A "no grounds" right could be exercised without the need for the landlord to provide a reason to justify its exercise: Udy v Barton [2025] NSWCATAP 117 at [15]. As a result, a valid termination notice given by a landlord in accordance with the requirements of former s 85 was sufficient of itself to impose a duty on the Tribunal to make an order terminating the residential tenancy agreement if the tenant did not vacate the premises by the date specified in the notice.
4. There is no dispute that the Tenancy Agreement was a periodic agreement. There is also no dispute that the Respondent gave the Appellant at least the 90-day notice period required by former s 85 of the RT Act.
5. Section 114 of the RT Act (which remains in the same terms despite the tenancy termination reforms) enables the Tribunal to stay termination orders it makes. It provides as follows:

114 Suspension of possession orders

(1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension.

(2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.

1. Section 115 of the RT Act (which also remains in the same terms despite the tenancy termination reforms) permitted the Tribunal in certain circumstances to declare a termination notice invalid, or to refuse to make a termination order, even if it was a "no grounds" termination. It provides as follows:

115 Retaliatory evictions

(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice -

(a) declare that a termination notice has no effect, or

(b) refuse to make a termination order,

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons -

(a) the tenant had applied or proposed to apply to the Tribunal for an order,

(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c) an order of the Tribunal was in force in relation to the landlord and tenant.

(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

1. The Appellant lodged an application with the Tribunal on 19 October 2024 seeking a remedy under s 115 of the RT on the grounds that the Termination Notice was retaliatory (the Appellant's Retaliatory Eviction Application).
2. The Respondent applied to the Tribunal on 2 December 2024 for an order under former s 85 of the RT Act terminating the Tenancy Agreement because the Appellant had not vacated the leased premises by the date specified by the Termination Notice, namely,15 November 2024 (the Respondent's Termination Application).
3. The Tribunal at first instance decided to dismiss the Appellant's Retaliatory Eviction Application on 6 March 2025. On 10 March 2025, the Tribunal determined the Respondent's Termination Application by deciding to make an order under former s 85 of the RT Act (along with related orders) terminating the Tenancy Agreement on 7 April 2025 and requiring vacant possession by that date.
4. On 24 March 2025, the Appellant lodged internal appeals against the decisions of the Tribunal at first instance in relation to both the Appellant's Retaliatory Eviction Application and Respondent's Termination Application.
5. On the same day, the Appellant also lodged an application to stay the decision of the Tribunal at first instance in relation to the Respondent's Termination Application. A differently constituted Appeal Panel dismissed the stay application on 16 April 2025 under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This was because the Appellant withdrew the application on the basis that she intended to move out of the leased premises on 17 April 2025.
6. The Appellant confirmed at the appeal hearing that she has moved out of the leased premises. She also said that she did not wish to return to the premises even if her appeals were successful.
7. We heard the appeals on 16 July 2025. The Appellant appeared for herself with the help of an interpreter. The Respondent's real estate agent appeared for the Respondent.

Decision concerning Appellant's Retaliatory Eviction Application

1. The Tribunal at first instance made an order on 6 March 2025 dismissing the Appellant's Retaliatory Eviction Application because the Tribunal was not satisfied (at the civil standard of proof) that the grounds required to make orders under s 115 of the RT Act had been established.
2. The principal ground relied on by the Appellant in support of the Appellant's Retaliatory Eviction Application was that the Termination Notice was in retaliation for the Appellant's August 2024 Repairs Request.
3. The Tribunal found as follows:

"20 I am satisfied on the evidence before me that the tenant has failed to provide evidence to support an order being made pursuant to s 115 of the [RT] Act.

21 The [tenant] relied on one issue and that was the landlord had failed to undertake the repairs. On the landlord's documentary evidence the Tribunal is satisfied it was willing and prepared to undertake the repairs. And further repairs if necessary, to items that had previously been repaired. I am satisfied the tenant denied access to the landlord for all of these repairs.

22 There is no evidence before the Tribunal that the tenant had applied for [or] proposed to apply to the Tribunal for any further orders for the repairs or compensation other than that which was finalised in June 2024 in favour of the tenant.

23 The tenant did not raise those proceedings as being a reason why the notice of termination was retaliatory. The only basis raised by the tenant was that the landlord failed to under the repairs listed above.

24 As I have said I am satisfied the tenant for her own reasons declined to grant access to the landlord or his tradesmen to undertake the repairs. Accordingly, it was her denial of access that resulted in a number of the repairs to remain outstanding. Although I note she conceded some of the repairs had been undertaken by the landlord.

25 For all these reasons and in the exercise of my discretion I find the landlord's Notice of Termination is not retaliatory.

26 And the tenant's application is dismissed."

1. The Tribunal at first instance made the following orders on 10 March 2025 in determining the Respondent's Termination Application:

(1) An order under former s 85 of the RT Act terminating the Tenancy Agreement where no grounds are required to be given.

(2) An order that the Tenancy Agreement is terminated on 7 April 2025 and vacant possession is to be given to the Respondent on the date of termination.

(3) An order that the Appellant is to pay the Respondent a daily occupation fee, at the rate of $90 per day, from the 8 April 2025 until the date that vacant possession was given.

(4) An order that the Respondent may request the relisting of the Application to determine the occupation fee owing within 60 days from the date of possession.

(5) An order that the Respondent's agent is to email a copy of the orders to the tenant on or before 12 March 2025.

1. Having already dismissed the Appellant's Retaliatory Eviction Application, the Tribunal found that the Termination Notice had been validly given in accordance with former s 85 of the RT Act. Accordingly, the Tribunal decided that an order terminating the Tenancy Agreement should be made.
2. The Tribunal noted that the Appellant sought to remain in possession of the leased premises until July 2025, but that the Respondent was only prepared to extend the date until 6 April 2025.
3. The Tribunal found that the Respondent's suggested date to regain possession of his premises was not unreasonable because:

(1) the Appellant had been on notice since 14 August 2024 of the need to vacate the premises; and

(2) the original date specified in the Termination Notice was 15 November 2024 and 6 April 2025 allowed for a period of a further five months after the date originally specified in the Notice.

1. Given that 6 April 2025 fell on a Sunday, the Tribunal decided that the Tenancy Agreement should be terminated, and vacant possession given, on Monday 7 April 2025.

1. Section 80 of the NCAT Act allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. An internally appealable decision is defined to include a general decision of the Tribunal: NCAT Act, s 32(1)(a) and (4). The decisions made by the Tribunal at first instance were made under the RT Act and did not otherwise fall within the Tribunal's administrative review, appeal or enforcement jurisdiction. Such decisions are general decisions: NCAT Act, s 29(1) and (3). The decisions of the Tribunal that the Appellant appeals against are therefore internally appealable decisions.
2. Section 80 of the NCAT Act does not provide an unfettered right to appeal. Section 80(2)(a) provides that appeals against interlocutory decisions of the Tribunal require leave (that is, permission) from the Appeal Panel. If the decision is not an interlocutory decision, s 80(2)(b) provides that a party has a right to appeal on a question of law. However, the leave of the Appeal Panel is required for an appeal on any other ground.
3. There is no suggestion that the decisions of the Tribunal at first instance are interlocutory decisions. Accordingly, s 80(2)(b) of the NCAT Act applies to the appeals against those decisions.
4. Section 80(2)(b) of the NCAT Act draws a distinction between appeal grounds that raise questions of law (which do not require leave) and grounds that do not raise questions of law (which require leave).
5. The following are examples of questions of law that seem to us to be relevant for the appeals before us:

(1) Whether there has been a material denial of procedural fairness by the Tribunal at first instance: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [83]−[84].

A denial of procedural fairness includes a failure by the Tribunal to respond to substantial, clearly articulated arguments based on established facts: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [32(4)]. Such a failure may also constitute the legal error of constructively failing to exercise jurisdiction: Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164 at [46]; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413].

(2) Whether the Tribunal at first instance asked itself the wrong question or misconstrued the statute: Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [66].

1. A question of law must be a "pure" question of law: Unique Commercial Group at [25(3)]. Ordinarily a question of law is relevantly "pure" if its answer does not require the Appeal Panel to resolve disputed facts: Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 (Damico) at [43]. However, an Appeal Panel is not prevented from making necessary findings of fact where the appeal ground is a denial of procedural fairness: Donohoe v Albulario [2025] NSWSC 9 at [33].
2. If leave to appeal is required for an appeal ground, cl12(1) of Sch 4 to the NCAT Act limits the circumstances in which leave can be granted for an appeal against a decision of the Tribunal in the Consumer and Commercial Division. Clause 12(1) provides that an Appeal Panel may grant leave to appeal only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision under appeal was not fair and equitable (see cl 12(1)(a)); or

(2) the decision under appeal was against the weight of evidence (see cl 12(1)(b)); 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) (see cl 12(1)(c)).

1. An appellant "may have suffered a substantial miscarriage of justice" for the purposes of cl 12(1) because of one of the circumstances mentioned in cl 12(1)(a), (b) or (c) if there is a "significant possibility" or "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance mentioned in cl 12(1)(a) or (b) not occurred or if the fresh evidence under 12(1)(c) had been before the Tribunal at first instance: Collins v Urban [2014] NSWCATAP 17 (Collins) at [76].
2. Without being exhaustive, a decision of the Tribunal will not be fair and equitable for the purposes of cl 12(1)(a) if there has been a denial of procedural fairness: Collins at [77](1).
3. A decision will be against the weight of evidence for the purposes of cl 12(1)(b) if "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins at [77](2).
4. Although a substantial miscarriage of justice resulting from a circumstance mentioned in cl 12(1)(a), (b) or (c) gives an Appeal Panel the discretion to grant leave, the Panel must still decide whether it is appropriate to grant leave: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [25]. The relevant principles applicable to deciding whether it is appropriate to grant leave were stated in Collins at [84] as follows:

"84 The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];"

1. Also, there must be utility in an appeal regardless of whether leave is required. If an appeal raises a question of law, the appeal should, if upheld, be capable of affecting the orders at first instance in a meaningful way: Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 at [34(8)]. However, an appeal will lack utility if its determination serves no practical purpose: The Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 (Parish) at [47]; Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 (Feeney) at [26]. Similarly, if leave to appeal is required, there must be utility in granting leave: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86].
2. When determining an internal appeal, s 81(1) of the NCAT Act provides that 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:

(1) the appeal to be allowed or dismissed;

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

(3) the decision under appeal to be quashed or set aside;

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

(5) 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.

1. The Appeal Panel may (when confirming, affirming or varying, or making a decision in substitution for, a decision under appeal) exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance and may exercise those functions on grounds other than those relied upon at first instance: NCAT Act, s 81(2).

1. The Appeal Panel has had regard to the following:

(1) The orders made by the Tribunal at first instance (along with its reasons) in relation to both the Appellant's Retaliatory Eviction Application and the Respondent's Termination Application.

(2) The notice of appeal dated 24 March 2025 and accompanying documentation lodged by the Appellant.

(3) The bundle of documents dated 30 June 2025 lodged by the Appellant, which includes both transcripts of the proceedings before the Tribunal at first instance prepared by the Appellant and the Appellant's written submissions. A sound recording of the proceedings was also provided.

(4) The interlocutory orders and directions of the differently constituted Appeal Panel concerning both appeals.

(5) The oral submissions of the parties at the appeal hearing.

1. The Respondent did not lodge a reply to appeal or any other documentation (including written submissions). Instead, the Respondent relied on oral submissions made by his agent at the appeal hearing.

1. The notice of appeal was lodged while the Appellant remained in possession of the leased premises. Consequently, the notice sought to have the orders made by the Tribunal at first instance set aside and for the matters to be remitted to the Tribunal for reconsideration.
2. As we have noted, the Appellant has now moved out of the leased premises and does not wish to return to them. When the Appeal Panel asked the Appellant at the appeal hearing what remedy she sought, she indicated that she wanted compensation for being forced to move out. She also indicated that she wanted the Appeal Panel to make a finding recognising that the Respondent had unlawfully sought her eviction. She submitted, amongst other things, that it would be in the public interest for such a finding to be made because it would highlight the deficiencies of NSW tenancy laws.
3. The principal grounds on which the Appellant relies in support of her appeal against the decisions of the Tribunal at first instance are stated as follows in the notice of appeal:

(1) The was a lack of "procedural justification". For example, the Appellant points to the Tribunal allowing the Respondent to submit documentation almost three weeks late.

(2) The Appellant's "right to defend" herself was not properly guaranteed.

(3) Various factual findings of the Tribunal at first instance were "completely wrong".

1. The Appellant also sought leave to appeal on the basis of the circumstances mentioned in cl 12(1) of Sch 4 to the NCAT Act.
2. In her written submissions, the Appellant points to the following in relation to the decision of the Tribunal at first instance concerning the Appellant's Retaliatory Eviction Application:

(1) The Tribunal was wrong to allow the Respondent to lodge his papers three weeks late.

(2) The Tribunal did not take proper account of the stress placed on the Appellant by the proceedings and the effort it took her to prepare for them.

(3) The Tribunal was wrong to characterise the Previous Tribunal Repair Proceedings as having been decided in her favour.

(4) The Respondent did not carry out the repairs requested in the Appellant's August 2024 Repairs Request and the Tribunal was wrong to say that she had conceded that the repairs had been done.

(5) The Tribunal was wrong to find that the documentation provided by the Respondent showed that the repairs had been done.

(6) The Tribunal was wrong to find that the evidence supported a finding that the Appellant had refused to allow access to the leased premises to carry out the repairs.

(7) The Tribunal was wrong to find that the Appellant had failed to provide evidence to support an order being made pursuant to former s 115 of the RT Act_._

1. In addition, the Appellant's written submissions make the following points in relation to the decision of the Tribunal at first instance concerning the Respondent's Termination Application:

(1) Because the Termination Notice was retaliatory, the Tribunal was wrong to decide the Termination Notice was valid.

(2) The Tribunal was wrong to decide that the date proposed by the Respondent for the Appellant to vacate the leased premises was reasonable.

1. As we have noted, the Respondent did not lodge any written submissions. Instead, the Respondent's agent made the following oral submissions at the appeal hearing:

(1) The Appellant has not established any of the circumstances for granting leave to appeal mentioned in cl 12(1) of Sch 4 to the NCAT Act.

(2) Compensation should not be awarded to the Appellant by the Appeal Panel because the Appellant did not seek compensation in the proceedings before the Tribunal at first instance.

(3) The Appellant does not seek re-entry to the leased premises. As a result, the appeals are futile.

(4) In any event, the Appellant was allowed to remain in the leased premises well past the original date for vacating the premises specified by the Termination Notice.

1. We approach discerning the appeals grounds having regard to the approach typically taken by Appeal Panels to appeals by self-represented appellants. The Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13] described the approach as follows:

"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'."

1. The approach requires an Appeal Panel to focus on the substance of the grounds relied on by a self-represented appellant rather than on their form: YKW v Public Guardian [2025] NSWCATAP 112 at [59]. However, the approach is subject to the caveat that appeal grounds discerned by an Appeal Panel must be reasonably discernible from the material before it rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
2. Looking at the notice of appeal and the submissions together, we are satisfied that the following appeal grounds can reasonably be discerned:

(1) Whether the Appellant was denied procedural fairness by the Tribunal at first instance (the procedural fairness ground). A ground alleging a denial of procedural fairness raises a question of law. Accordingly, the Appellant has a right to appeal on this ground without leave from the Appeal Panel.

(2) Whether the Tribunal made findings concerning the repairs requested in the Appellant's August 2024 Repairs Request that were against the weight of evidence (the weight of evidence ground). A ground alleging that factual findings are against the weight of evidence requires leave from the Appeal Panel.

1. We turn now to consider each of the appeal grounds we have discerned.

1. The procedural fairness ground has two limbs to it.
2. Firstly, the Appellant alleges the there was a denial of procedural fairness because the Tribunal at first instance allowed the late lodgement of documentation by the Respondent.
3. We are not satisfied that this constitutes a material denial of procedural fairness.
4. As the Tribunal at first instance noted:

"The tenant says and I accept, the landlord served its evidence late, and she sought and was granted leave to rely on a second bundle of documents in reply, which were handed up today at the hearing. A copy of which was provided to the landlord's managing agent Mr Khandaroo. No objection to the late service was taken by the landlord."

1. It cannot be said that the Appellant was denied an opportunity to respond to the Respondent's late evidence, which she clearly did. As a result, the Tribunal afforded her with an opportunity to be heard in a way that was consistent with its duty to afford procedural fairness to both parties.
2. Secondly, the Appellant alleges in the notice of appeal that the Tribunal did not guarantee her "right to defend" herself. It is unclear from her submissions what she meant by this. However, we note that the Appellant provided a transcript of the proceedings before the Tribunal prepared by the Appellant, which includes her own annotations. Some of the exchanges between the Tribunal and the Appellant on which the Appellant relies indicate that the Tribunal refused to hear the Appellant's submissions concerning repairs she requested that pre-dated the Appellant's August 2024 Repairs Request and the Termination Notice. The basis for the Tribunal's refusal was that it considered them to be irrelevant.
3. It may be that the Tribunal considered evidence about the Appellant's earlier requests for repairs to be irrelevant because the Appellant's Retaliatory Eviction Application relied principally on the Appellant's August 2024 Repairs Request and what ensued after she made that request.
4. It seems to us that repair requests, regardless of when they were made, may provide relevant evidence concerning whether a termination was retaliatory for the purposes of s 115 of the RT Act.
5. Section 115(2) of the RT Act requires the Tribunal to be satisfied that "the landlord was wholly or partly motivated to give the [termination] notice or make the [termination order] application" for any of the three reasons listed in the subsection. Accordingly, whether a termination notice is retaliatory necessarily requires the Tribunal to determine the motivation of the landlord at the time the notice was given.
6. Plainly, evidence concerning the conduct of the landlord before the notice is given may be relevant. However, this is not to say that evidence about the conduct of the landlord after the notice was given is irrelevant. For instance, the landlord may have communicated the landlord's true motivation for giving the notice by words or conduct occurring after the notice was given. Also, if a tenant was seeking to enforce a right to have repairs done, the refusal by the landlord to carry out the requested repairs (whether before or after giving a termination notice) might provide some evidence that the notice was motivated by the tenant's attempt to enforce that right.

1. Given our conclusion that the Tribunal at first instance denied the Appellant procedural fairness (or, alternatively, constructively failed to exercise jurisdiction), it is unnecessary for us to consider the weight of evidence ground. In any event, even if the ground could be made out, we do not consider that it would make any difference to the outcome of the appeals for the following reasons.

Appeals lack utility because there is no appropriate remedy

1. Ordinarily, the legal error we have found would require the appeals to be allowed. However, as we have mentioned, there must be utility in an appeal.
2. The Appeal Panel in Parish at [49]−[60] provided a useful summary of the relevant principles concerning the utility of an appeal:

"46 A proceeding, or an aspect of it, will lack utility if its determination serves no practical purpose. One way a proceeding or issue can become moot is if, due to supervening events or circumstances, there is no longer a controversy between the parties: Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 (Hunter Development) at [40].

47 As a matter of general principle, courts will ordinarily refuse to determine issues which no longer have utility or have become moot. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47], the High Court explained:

'Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.'

49 Courts have the power to dismiss or stay proceedings which involve issues that are not live between the parties, so as to protect the court's processes from being abused. This includes the power to dismiss an appeal which was brought as of right, 'if later events show that the questions involved in it have become moot between the parties': Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [30]-[31].

50 The Tribunal likewise has the power to summarily dispose of issues which have no utility. Section 36(1) the NCAT Act provides that the guiding principle for proceedings under the Act is to 'facilitate ... the real issues in the proceedings'. This imperative applies to 'the resolution of the issues between the parties': NCAT Act, s 36(4). The Tribunal has procedural powers under ss 36 and 38 to ensure that proceedings meet the guiding principle: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [160]- [162].

51 While the general rule is that proceedings which have become moot should not be entertained, there is a line of authority which suggest that courts nevertheless have a discretion to determine matters which have been regularly commenced; notwithstanding that there is no longer a live substantive issue between the parties: People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD); Jardin; Hunter Development; Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; ()

(1) Where there is a live issue of costs between the parties and resolution of the issue depends on determining the appeal on its merits: Hunter Development at [27]-[38], [46], [56]; Jardin at [32].

(2) Where the appeal raises an important question of principle which will have ramifications for other cases: PWD at [13]-[15]; Jardin at [32]; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 at [118]- [119].

(3) Where appeals have been brought in the public interest and there is 'an issue of construction having significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment': Industrial Equity at [16].

53 In Jardin, Campbell JA noted that the discretion should be exercised sparingly, stating (at [35]):

'It could only be in rare circumstances, if ever, that a court was justified in reaching a decision on legal question that had no practical consequences for either of the parties: Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69.'

54 The foregoing provides some basis to suggest that the Tribunal, too, has a narrow discretion to determine a matter, which was regularly commenced, but where there is no longer a live substantive issue between the parties. The question of costs might provide such justification, although, it is not always necessary or appropriate to finally determine the merits of a matter in order to determine costs: Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 (McHugh J).

55 The discretion of the Appeal Panel to consider a moot appeal was discussed by the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [7]- [25]. It was there noted that the question of costs and whether an error of principle is raised might provide the basis to exercise the discretion. Nevertheless, the Appeal Panel declined to entertain the moot appeal in that case. It dismissed the appeal under s 55(1)(b) of the NCAT Act, as misconceived or lacking in substance.

...

60 We accept, as a general proposition, that where a matter has been regularly commenced, but subsequent events mean that there is no longer a live issue as between the parties, the Tribunal may have authority to determine the matter. The real question is what orders the Tribunal would have power to make; and why."

1. The remedy initially sought by the Appellant from the Appeal Panel was for the decisions of the Tribunal at first instance to be set aside and the Appellant's Retaliatory Eviction Application and Respondent's Termination Application to be remitted to the Tribunal for reconsideration. The Appellant has since moved out of the leased premises. She withdrew her application for a stay that could have preserved her tenancy pending the determination of the appeals. The Appellant made it clear at the hearing that she no longer wishes to return to the leased premises.
2. The Appellant now seeks compensation and a finding recognising that the Respondent unlawfully sought to evict her.
3. On one view, there is still a live issue between the parties because the Appellant claims she was unlawfully forced out of the leased premises while the Respondent claims he was entitled to evict her.
4. However, even assuming this constitutes a live issue in the sense contemplated by Parish, we think that the real question here is whether there is an alternative remedy that the Appeal Panel can provide given that the Appellant does not wish to return to the leased premises. In this regard, we note that the expression "may make such orders as it considers appropriate in light of its decision on the appeal" used in s 81(1) of the NCAT Act clearly contemplates that an Appeal Panel has a discretion in deciding what remedy (if any) is appropriate for determining an appeal. In our view, if an Appeal Panel cannot provide an appropriate remedy for an internal appeal, this is also a basis for treating the appeal as lacking utility.
5. With this in mind, we turn to each of the remedies that the Appellant now seeks.

1. We do not consider that the Appeal Panel can order the payment of compensation sought by the Appellant.
2. The question of compensation was not raised with the Tribunal at first instance. This is understandable because at that stage the dispute between the parties was focused on whether the Appellant could be lawfully evicted from premises she had not yet vacated. Although it is true that s 187(1)(d) of the RT Act allows the Tribunal to order compensation, there was no basis for ordering compensation at first instance for an eviction that had not yet occurred. Moreover, the focus of the remedies provided by s 115 of the RT Act (which was the section invoked by the Appellant's Retaliatory Eviction Application) is to prevent a tenant in possession of premises from being evicted from those premises by a termination notice given by the landlord.
3. In addition, we note that an Appeal Panel can only exercise the functions of the Tribunal at first instance when it confirms, affirms or varies (or makes a decision in substitution for) the decision of the Tribunal at first instance: NCAT Act, s 81(2). Clearly, the Appellant does not ask us to confirm, affirm or vary the decision of the Tribunal at first instance. Arguably, the Appellant is asking us to make a decision for compensation in substitution for the decisions for the Tribunal at first instance. However, we cannot award compensation pursuant to s 81(2) if the Tribunal at first instance did not have power to do so.
4. Finally, compensation could only be awarded by taking into account the loss that the Appellant sustained by being forced to vacate the leased premises because of the decisions of the Tribunal at first instance. The material before the Tribunal (and, as a result, before us) is insufficient to enable us to assess what compensation, if any, should be awarded on this basis. This is because the material predates both the Tribunal's decisions and the Appellant vacating the leased premises. We do not think that the issue of compensation can be remitted to the Tribunal at first instance. The power to remit conferred on an Appeal Panel by s 81(1)(e) of the NCAT Act is limited to remitting the whole or part of a case "for reconsideration by the Tribunal". The Tribunal cannot sensibly be required to reconsider an issue that it was never asked to consider. It would also be unfair to the Respondent to require him to deal with an argument that was not advanced to the Tribunal at first instance: ; at 9.

1. We also do not consider that making a finding that the Respondent unlawfully sought to evict the Appellant is a remedy that we can provide to the Appellant.
2. Such a finding would, in substance, amount to no more than a declaration about the lawfulness of the Respondent's conduct with no practical consequences. An Appeal Panel does not have power to make declarations that operate merely as advisory opinions: Australian Press Council Inc v Southey [2022] NSWCATAP 127 at [47]-[48]. In any event, based on the limited material before us, we are not able to decide whether the Termination Notice was relevantly retaliatory and therefore unlawful.

1. If the Appellant had sought to regain possession of the leased premises despite vacating them, there may have been utility in setting aside the Tribunal's termination order even if only for the purpose of enabling the Tribunal to reconsider that order. Setting aside the order could potentially have revived the Appellant's periodic tenancy pending the reconsideration: Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 at [119]. However, the Appellant does not seek to revive her tenancy.
2. For the reasons given above, we are not satisfied that the Appeal Panel can provide any of the alternative remedies that the Appellant now seeks. Accordingly, we consider that the Appeal Panel should dismiss both of her appeals because they lack utility.

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.