• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Representation: Counsel:
E Vuu (First and Seventh Defendants)
D Holmes (Third and Fourth Defendants)
J Chapman (Fifth Defendant)
Solicitors:
Terzon Group Lawyers (First and Seventh Defendants)
Maclarens Lawyers (Third and Fourth Defendants)
Crown Solicitors’ Office (Fifth Defendant)

File Number(s): 2025/361491

Judgment – EX TEMPORE REVISED FROM TRANSCRIPT

1. HIS HONOUR: By a second amended summons filed on 21 May 2026 and Notice of Motion filed 19 September 2025, the plaintiff seeks judicial review of two decisions. The first decision was made by General Member Ash of the New South Wales Civil and Administrative Tribunal (NCAT) on 18 September 2024; by which orders were made terminating a tenancy and granting a warrant for vacant possession of premises in Fairfield, New South Wales (NCAT decision). The second decision was said to have been made by New South Wales Fair Trading (NSW Fair Trading) and communicated to the plaintiff on or about 23 July 2024; pursuant to which a complaint made to that organisation by the plaintiff was closed without investigation (NSW Fair Trading decision).

2. The circumstances giving rise to these decisions, and the present application, were canvassed in the reasons of N Adams CJ at CL in Spencer v The Trustee for CCG Projects Trust [2026] NSWSC 443 at [17]-[37]. In the interests of brevity, I will not repeat this history and will assume familiarity with her Honour’s reasons.

3. As is apparent from her Honour’s reasons at [34], the plaintiff has not resided in the premises since October 2024. The plaintiff accepted this fact and further accepted that — if successful in his challenge to either or both of the decisions — that success would not result in him returning to the premises or resuming his tenancy.

The leave requirement

4. To bring these proceedings, the plaintiff requires leave pursuant to Uniform Civil Procedure Rules (UCPR) r 59.10(1), which provides that "judicial review proceedings must be brought within in three months of the relevant decision."

5. These proceedings were commenced on 19 September 2025, well more than three months after both of the decisions challenged were made.

6. Pursuant to UCPR r 59.10(2), the Court may extend the time for the commencement of proceedings. A threshold question arises in this case as to whether it is appropriate to do so.

7. UCPR r 59.10(3) provides that:

In considering whether to extend time under subrule (2), the Court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

a) any particular interest of the plaintiff in challenging the decision,

b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including by not limited to prejudice to parties to the proceedings,

c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, and

d) any relevant public interest.

8. The principles to be applied on such an application are well known and were summarised by the Court of Appeal in Truong v DPP (NSW) [2023] NSWCA 64 at [56]:

“Matters relevant to be taken into account (see rule 59.10(3)) include possible prejudice if the extension were to be granted and any relevant public interest. Clearly relevant also are matters such as the length and reasons for the delay and whether the claim is fairly arguable (Dyason v Butterworth [2015] NSWCA 52 at [65] per McColl JA, with whom Barrett and Gleeson JJA agreed), particularly given that proceedings for judicial review should generally be determined quickly, and many decisions reflect the need for timeliness (Insurance Australia Group trading as NRMA Insurance v Keen [2021] NSWCA 287 per Leeming JA at [64], with whom Basten JA and Simpson AJA agreed).”

9. The onus rests with the plaintiff to establish that leave should be granted to permit him to challenge these decisions out of time: Truong v DPP (NSW) at [56]; Tomko v Palasty (No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [80].

10. I would add, as a relevant matter to be taken into account in this case, the practical utility (if any) of a successful challenge to either or both of the underlying decisions. This matter bears on the question of whether leave should be granted in two distinct, albeit related, ways.

11. First, it is a standalone matter, which informs the plaintiff’s interest in challenging the decisions and the question of whether he has demonstrated that he has suffered a particular injustice which rises above what might merely be arguable. Secondly, it bears on the question of what relief might be appropriate, even if leave were to be granted and jurisdictional error established. This is, in turn, relevant to my assessment of whether the plaintiff has established that his claim is fairly arguable; inutility being a powerful discretionary factor favouring the refusal of relief.

12. Finally, I consider it appropriate to have regard to the well-established principle that relief of the kind available under s 69 of the Supreme Court Act 1970 (NSW) will generally not be granted if there is another equally effective and convenient remedy.

13. As was observed by Barrett J in NSW Breeding & Racing Stables Pty Limited v Administrative Decisions Tribunal NSW (2001) 53 NSWLR 559; [2001] NSWSC 494 at [16]:

“The Boral case concerned an application for judicial review by way of prerogative relief in respect of a decision of a judge of the Industrial Court of New South Wales in circumstances where remedies available to the applicant by way of appeal to the Full Industrial Court constituted by three judges had not been sought. Kirby P surveyed treatment of the subject in the English Court of Appeal and the House of Lords, including Ex parte Waldron [1986] QB 824, Re Preston [1985] AC 835 and R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424. The message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by "exceptional circumstances". It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the "general rule" should not be approached as if it were a statutory prescription.”

14. In the case of the NCAT decision, this principle is reflected in s 34 of the Civil and Administrative Tribunal Act 2013 (NSW).

Delay

15. The delay in this case has been reasonably extensive. To some extent, that delay is explained by the plaintiff’s need to secure alternative accommodation after vacating the premises. I accept that this is likely to have been an unsettling and time-consuming exercise. However, I also note that during this period the plaintiff continued to liaise with Legal Aid and, in June 2025, received the benefit of pro bono assistance from a barrister.

16. While some of the delay in bringing these proceedings is explained by circumstances beyond the plaintiff’s control, I am not satisfied that the delay in bringing this application is wholly explained by the challenges he experienced after vacating the premises.

Lack of utility

17. I am not satisfied that the application brought by the plaintiff raises any matter of principle or public importance. I am also not persuaded that, if he were to succeed in his challenge to either of the decisions, that success would have any practical utility.

18. Insofar as the NSW Fair Trading decision is concerned, the plaintiff fairly acknowledged that a successful challenge would have, in his words, “not much utility”. It would, he said, demonstrate that he had pursued all avenues. He will have done so, even if leave to challenge that decision is refused.

19. In my view, a successful challenge to the NSW Fair Trading decision — if it was a decision at all — would have no utility.

20. I have reached a similar conclusion in relation to the plaintiff’s challenge to the NCAT decision. By that decision, General Member Ash made a termination order under s 85 of the Residential Tenancies Act 2010 (NSW), which was stayed for a short period and ultimately made the subject of enforcement action by the NSW Sheriff’s Office.

21. As I have already said, the plaintiff frankly conceded that a successful challenge to the NCAT decision will not result in his returning to the premises; he instead suggested that a successful challenge would give him some “vindication”. I am not satisfied that this alone means that a successful challenge would have any practical utility.

A fairly arguable case?

22. Submissions bearing on the substantive challenge to the two decisions were also made by the parties. As was observed in Tomko v Palasty (No. 2) at [58]:

“[t]here is a danger in placing too much emphasis on the prospects of success: to do so invites the parties to treat the application as a dress rehearsal for the full appeal.”

23. Here, the risk of a dress rehearsal was greatly reduced by the fact that the application for leave and — if leave were granted — the substantive hearing were to be conducted together.

24. On the question of leave, the plaintiff was required only to demonstrate only that he had a fairly arguable case. Having considered the submissions made by the parties in relation to the plaintiff’s substantive challenge to the two decisions, I consider it doubtful that his claim crosses that relatively undemanding threshold, particularly his challenge to the NSW Fair Trading decision. However, for the purposes of considering whether leave should be granted to bring the proceedings, I have proceeded on the basis that he has done so.

Alternative appeal rights

25. Finally, and in relation to the plaintiff’s challenge to NCAT decision, I note that he has chosen not to pursue the avenue of appeal available to him under Pt 6 of the Civil and Administrative Tribunal Act.

26. The NCAT decision was an internally appealable decision for the purposes of s 80 of the Civil and Administrative Tribunal Act by operation of s 32. The plaintiff’s decision not to pursue these appeal rights is a factor which weighs against a grant of leave.

Conclusion

27. Having taken each of these matters into account, I am not persuaded that time should be extended to permit the plaintiff to bring those proceedings.

28. I make the following orders:

29. The second amended summons filed on 21 May 2026 is dismissed.

30. The plaintiff’s notice of motion filed on 19 September 2025 is dismissed.

31. The plaintiff is to pay the defendant’s costs of the proceedings.

**********