SPL Living Pty Ltd v JAM Super Property Holdings Pty Ltd

1. A preliminary issue in the proceedings relating to jurisdiction was determined by the Tribunal at a hearing on 19 June 2024. At the time of this hearing SPL did not dispute that it was the tenant of the Premises. However it contended that the Tribunal had no jurisdiction in relation to the residential tenancy agreement because of clause 26 of the Residential Tenancies Regulation 2019 (RTR)_._Clause 26 relevantly provides, in essence, that a residential tenancy agreement is exempt from the operation of the RTA if the premises are not used as a residence by the tenant and the premises are used to provide disability accommodation.
2. On 19 June 2024 the Tribunal held that clause 26 of the RTR did not apply and that accordingly the Tribunal had jurisdiction to determine the dispute.
3. In the course of reaching that conclusion the Tribunal Member stated at [2] that "I am satisfied that there is a residential tenancy agreement between the parties". That was not a surprising finding given that Mr Mason, who gave evidence on behalf of SPL, had provided two statements including a statement dated 14 June 2024 asserting that SPL was the tenant of the Premises and had sub-leased the Premises to various sub-tenants.
4. After the hearing on 19 June 2024 Mr Mason made a further statement dated 25 July 2024. In this statement he said that whilst he had understood that SPL was the tenant of the Premises when he had prepared his earlier statements, he now believed that SPL was not the tenant. In his 25 July 2024 statement Mr Mason said that he believed that the tenant was a related company, Sanctuary Place Pty Ltd.
5. The substantive proceedings were heard in the Tribunal on 4 September 2024. The Tribunal made orders and published its reasons on 20 September 2024. The Tribunal identified the issues to be determined as:

(1) Whether SPL was a tenant under a residential tenancy agreement with JAM;

(2) What was the agreed rent amount;

(3) When did the tenancy come to an end; and

(4) What is the amount of rent arrears outstanding.

1. The Tribunal found at [27] - [32] that SPL was the tenant under a residential tenancy agreement with JAM, "at least from 1 July 2022". This was because the Tribunal considered (at [28]-[32]) that a Bill Activity Statement for the 2022-2023 financial year which it found was prepared by SPL (Bill Activity Statement) should be "accepted on its face". The Bill Activity Statement identified SPL as the tenant of the Premises.
2. At [33] the Tribunal noted a submission from SPL that the entity which initially entered into the tenancy agreement was Sanctuary Place Pty Ltd. The Tribunal stated:

Even if that were the case, which is not clear on the evidence before me, I would be prepared to infer that that rights and obligations of the tenant passed to the respondent at some stage prior to 1 July 2022. (The identity of the tenant can change if the right to occupy the premises passes- see definition of "tenant" in section 3, and section 74, of the Act.)

1. At [34] the Tribunal stated that in the circumstances it was not necessary to determine whether the issue of the identity of the tenant had already been determined in the Tribunal's decision of 19 June 2024.
2. As to the agreed rent amount, at [35] the Tribunal found that the agreed rent was $700 per week or $3,033.33 per month. At [36], the Tribunal added:

In any event, if I am wrong about that, I am satisfied that there was a rent increase to the amount of $3,033.33 per month that has taken place prior to 1 July 2022. I am prepared to infer this on the basis that this was consistently the amount paid for rent since that time, as shown in the Bill Activity Statement and the applicant's bank statement, and there are no records from the respondent to the contrary. Any such rent increase is taken to comply with section 41 of the Act, as no application to the contrary has been made within the 12 month period ( see section 41(10)).

1. Having previously noted that JAM had submitted that it had obtained vacant possession of the Premises on 3 April 2024 whereas SPL had submitted that the Premises were vacated in January 2024, at [37] the Tribunal stated that it was unnecessary to decide when the tenancy came to an end because it was not in dispute that the tenancy was still on foot up to the end of January 2024.
2. At [39] the Tribunal found that no rent was paid for the months of September 2023 to January 2024 inclusive. Rent for these five months exceeded the Tribunal's monetary limit of $15,000.
3. SPL had submitted to the Tribunal, as recorded at [21]- [22] of the Tribunal's reasons, that if there was a shortfall of rent (which it denied), there had been other payments to SPL or related entities which should be applied towards rent of the Premises. At [41] the Tribunal stated that it would not make a finding to this effect because it was not satisfied that other payments made were compensation for a rent shortfall or should be set off against rent. The Tribunal found that there were other disputes on foot and other arrangements between related entities of the parties under which payments may be required.
4. At [42] the Tribunal noted a submission by SPL that Ms Warham, a director of JAM, had, whilst previously working for SPL or a related entity, produced documents or made payments in connection with the tenancy which were erroneous. The Tribunal stated that whether or not this had occurred was beyond the scope of the proceedings and that it was satisfied that an amount of $15,000 was owing by SPL to JAM for rent arrears.
5. It was on the basis of these findings that the Tribunal ordered SPL to pay JAM $15,000 within 14 days of the date of the decision.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [51].
2. Internal appeals to the Appeal Panel may be made as of right on a question of law, and otherwise if the Appeal Panel grants leave: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
3. Principles relevant to assessing whether a question of law arises were recently summarised by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. Those principles include that the question of law should be capable of identification in abstract terms. It must not be hypothetical. It is not possible to raise a question of law by a mere drafting device of asserting error of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223. Put another way, the notice of appeal must in substance genuinely raise a question of law.
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

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

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(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.

1. SPL's Notice of Appeal was lodged within time on 2 October 2024.
2. The grounds of appeal attached to the Notice of Appeal were divided into what were said to be questions of law and what were said to be questions of fact. Thirty grounds of appeal were stated in separate sub-paragraphs of the document. What were said to be questions of law were divided under the following sub-headings: "legal error, mistake of law", "findings of fact without supporting evidence", "failure to draw the proper inference" and "failure to give proper weight to certain evidence".
3. It is unnecessary and would in fact be unhelpful to set out the extensive array of grounds of appeal in full. Many of the grounds of appeal are repetitious and in substance raise the same point. The grounds of appeal can be reduced to the following contentions:

(a) The Tribunal erred in concluding that SPL was the tenant ( grounds of appeal 1(b), 2(a), 3(c), 4(a), 5(a), 5(c)).

(b) The Tribunal erred in applying section 74 of the RTA to find at [33] that there had been a transfer of the tenancy to SPL (grounds of appeal 1(a), 1(c), 3(a), 3(b), 5(d)).

(c) The Tribunal erred in finding that the rent was $3,033.33 per month and should have found that the rent was $2,800 per month ( grounds of appeal 2(b), 4(b), 5(e), 5(f), 5(h)).

(d) The Tribunal erred in applying section 41 of the RTA to find at [36] that the rent had been increased to $3,033.33 per month (grounds of appeal 1(d), 1(e), 2(c), 2(d), 5(g), 5(i)).

(e) The Tribunal should have found at [41] that various payments should have been applied to or set off against outstanding rent ( grounds of appeal 2(e), 3(d), 4(c), 5(k), 5(l)).

(f) The Tribunal made an error of fact in finding that the Bill Activity Statement was created or issued by SPL (grounds of appeal 5(b) and 5(j)).

(g) The Tribunal made an error of fact in finding at [42] that whether or not Ms Warham had made erroneous payments or statements was beyond the scope of the proceedings (ground of appeal 5(m)).

1. In addition to the oral submissions of the parties on the hearing of the appeal we have had regard to the following documents lodged by the parties:

(a) SPL's submissions lodged on 11 October 2024;

(b) JAM's submissions lodged on 16 October 2024;

(c) SPL's Bundle of Documents lodged on 19 November 2024 (Bundle);

(d) JAM's submissions and supporting documents lodged on 12 December 2024; and

(e) SPL's submissions in reply lodged on 24 December 2024.

1. SPL emphasised in both its oral and written submissions that its main contention was that it was not the lessee of the Property. SPL contended that the Tribunal should have found that the lessee was its related company, Sanctuary Place Pty Ltd. On this issue SPL submitted that:

(a) the Tribunal erred in finding that if SPL was not the tenant originally, the tenancy was transferred to SPL prior to July 2022 because there was no evidence of a transfer, nor was there evidence, as required by section 74 of the RTA, that JAM had given written consent to the transfer;

(b) SPL did not satisfy any of the criteria to be the tenant of the Premises as defined by section 3 of the RTA because it never had the right to occupy the premises under a residential tenancy agreement and the tenancy was never transferred to it;

(c) the identity of the contracting parties to the tenancy agreement was a question of law;

(d) further, or alternatively, the Tribunal's finding that SPL was the tenant was against the weight of the evidence, which demonstrated that Sanctuary Place Pty Ltd was the tenant. SPL contended that the issue of whether a finding is against the weight of evidence is a question of law;

(e) SPL pointed to JAM's failure to produce a written lease agreement and what it said was inconsistent evidence from Ms Warham about the agreement;

(f) a number of documents supported its contention that the Tribunal should have found that Sanctuary Place Pty Ltd was the tenant of the premises. These documents included:

(i) a memorandum of understanding relating to the Premises (Bundle page 66) which the evidence indicated was prepared in June 2020 (MOU). The MOU was signed by Ms Warham but not by Mr Mason. The MOU is headed "Sanctuary Place" and states that it is between "Sanctuary Place and Jenny Warham (Jam Family Future Fund Pty Ltd)". The MOU states that "Sanctuary Place" agrees to pay Jam Family Future Fund Pty Ltd $900 rent weekly from 1 July 2020. Where it was intended that Mr Mason would sign the document he is described as "Director Sanctuary Place";

(ii) a document entitled variously as "Sanctuary Place Tax Invoice" and "End Of Year Statement" relating to the 2021 financial year identifying rental income (Bundle page 67) (Tax Invoice). The document bears a number of printed names at the top of the document including "SPL" and "Sanctuary Place";

(iii) emails from the group which included SPL to its external accountant in December 2020 and January 2021 headed "Sanctuary Place Pty Ltd "(Bundle pages 119-125). An email dated 20 December 2020 stated that "All the head leases are signed under this entity". A subsequent email dated 11 January 2021 stated that " Since then we have changed the structure where Sanctuary Place Pty Ltd is now the tenant"; and

(iv) bank statements for JAM for the period from November 2020 to September 2023 ( Bundle pages 34-41) describe lease payments from time to time from "Sanctuary Place".

1. In relation to its grounds of appeal concerning the amount of the rental, SPL submitted that:

(a) the Tribunal finding that the rent was $3,033.33 per month was against the weight of evidence which demonstrated that the rent was $2,800 per month;

(b) the Tribunal erred in applying section 41 of the RTA to find that if it was wrong in relation to the initial amount of the rent, it was satisfied that the rent was increased to $3,033.33 per month. This was because there was no evidence that the relevant notice was given by JAM as required by section 41(1) and therefore no basis for SPL to apply under section 41(10);

(c) furthermore there was no evidence on which to make a finding that the rent for the Premises was increased; and

(d) the Tribunal erred in failing to make a finding that various payments should have been applied to or set off against outstanding rent.

1. In relation to the alleged factual error made by the Tribunal concerning the Bill Activity Statement and SPL's role in relation to it, SPL referred to unchallenged evidence from Mr Mason that he had not seen the document, that he believed Ms Warham was involved in creating it and that the payments referred to in it did not match the payments in the bank statements.
2. As to the asserted factual error in failing to take into account alleged erroneous payments or statements by Ms Warham, SPL submitted that having challenged the authenticity of the Bill Activity Statement and asserted that Ms Warham was involved in its creation, whether or not Ms Warham had made erroneous payments or statements was relevant and not beyond the scope of the proceedings.
3. At the hearing of the appeal counsel for SPL confirmed that Ms Warham was not cross-examined at the hearing before the Tribunal. Although Ms Warham had been cross- examined at the Tribunal hearing on 19 June 2024 , the transcript of that hearing was not tendered at the Tribunal hearing on 4 September 2024.

1. JAM submitted that the Tribunal's determination on 19 June 2024 that there was a residential tenancy agreement between the parties was a final determination of this issue (which had not been appealed). JAM submitted that this finding was in any event plainly correct. Moreover the identity of the tenant (as opposed to the question of whether or not any tenancy was created) was a question of fact.
2. In relation to the grounds of appeal asserting that the Tribunal erred in applying section 74 of the RTA to find that there had been a transfer of the tenancy to SPL, JAM submitted that this was obiter dicta, the Tribunal made no such finding and, if it had, this was a question of fact.
3. In response to the submission that JAM had failed to produce a written lease agreement and the contention that Ms Warham had given inconsistent evidence about this, JAM submitted that it had consistently maintained that there was a partly written and partly oral lease agreement, that the written agreement had been kept at SPL's offices and that Ms Warham no longer had access to the document after she left the employ of SPL.
4. In relation to the documents relied upon by SPL to indicate that the tenant was Sanctuary Place Pty Ltd, JAM pointed out that:

(a) Mr Mason had said in a statement ( Bundle page 86) that SPL "carries on a business which is also known as Sanctuary Place Living". References in documents to "Sanctuary Place" therefore did not necessarily identify Sanctuary Place Pty Ltd and could equally have referred to SPL;

(b) as to the MOU, it identified the wrong party as landlord, an incorrect amount for rental and the wrong address for the Premises;

(c) many of the bank statements for JAM for the period from November 2020 to September 2023 also refer to lease payments from "Sanctuary Living", "SPL Living" and " MM Construction" and consistently refer to lease payments from "SPL Living" from October 2021 to September 2023;

(d) a remittance advice from SPL to JAM dated 5 May 2022 for rental for April 2022 ( Bundle page 68) (Remittance Advice) described the payee as SPL (and the monthly rental as $3,033.33). There was evidence that this document was prepared by SPL (Bundle page 62, paragraph 12); and

(e) despite changing his evidence in his 25 July 2024 statement, in two earlier statements dated 30 April 2024 and 14 June 2024 Mr Mason had clearly stated on a number of occasions that SPL was the tenant. This included Mr Mason recounting a conversation which he had with Ms Warham prior to September 2020 in which he said it was discussed that SPL would be the lessee (Bundle page 89 at paragraph 15).

1. JAM submitted that the Bill Activity Statement was part of a document stated on its face to have been prepared by SPL which also included a letter from Mr Mason (Bundle pages 42-44). Ms Warham had given unchallenged evidence that she had received this document from SPL on or around 1 July 2023 (Bundle page 32, paragraph 12). JAM submitted that this document was the best documentary evidence of the identity of the tenant and the amount of the rent.
2. As to the amount of rental, JAM submitted that the Tribunal correctly found that the rental was $700 per week or $3,033.33 per calendar month.. As to the ground of appeal asserting that the Tribunal had erred in applying section 41 of the RTA to determine that there had been an increase in rental, JAM submitted that this was obiter dicta, the Tribunal had made no such finding and, if it had, this was a question of fact. JAM also pointed out that even if the rental was $2,800 per month as claimed by SPL, the Tribunal found that no rental had been paid for the period from September 2023 to January 2024, which produced a total unpaid rental of $14,000. If ,as JAM claimed, the tenancy did not come to an end until April 2024, then if the rental was $2,800 per month the unpaid rental exceeded $15,000, which was the total amount ordered to be paid.
3. Insofar as SPL contended that findings by the Tribunal were against the weight of evidence, JAM submitted that this was a question of fact. JAM referred to Collins v Urban at [77], in which the Appeal Panel explained that a decision under appeal can be said to be against the weight of evidence where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach. JAM submitted that none of the Tribunal's findings in this case could be so characterised.
4. As to the remaining grounds of appeal, JAM submitted:

(a) in relation to the contention that the Tribunal should have found that various other payments had been applied towards or set-off against the rental, it was common ground that Mr Mason and entities associated with him on the one hand, and Ms Warham and entities associated with her on the other hand, were involved in multiple proceedings and arrangements. Ms Warham had given clear evidence about the nature of these payments ( Bundle page 72-73, paragraph 13) and she was not cross-examined. The Tribunal was correct to conclude that they did not relate to rent for the Premises;

(b) SPL had led no evidence to support its contention that Ms Warham had made erroneous payments or had created documents without the knowledge or approval of SPL whilst she was an employee.

1. SPL submitted that the finding by the Tribunal on 19 June 2024 that there was a residential tenancy agreement between JAM and SPL was not a final determination of that issue. That hearing only determined a threshold jurisdictional issue as to whether clause 26 of the RTR applied. SPL submitted that the relevant finding at the 19 June 2024 hearing was not conclusive and did not create an issue estoppel as to the identity of the parties to the agreement.
2. In relation to the MOU, SPL pointed out that Ms Warham had given evidence (Bundle page 61 paragraph 6(a)) establishing that the MOU correctly identified the address of the Premises at that time.
3. In relation to the Bill Activity Statement, SPL referred to a statement from Mr Mr Mason (Bundle page 112 paragraph 24 (a)) that he had not seen this document until it was served as an annexure to a statement from Ms Warham in the Tribunal proceedings.
4. In relation to the identity of the tenant, SPL submitted that Mr Mason had clearly corrected his evidence about this issue in his 25 July 2024 statement (Bundle page 109 paragraphs 11-12)

1. Despite the way in which SPL framed its Notice of Appeal, in our view there is no question of law genuinely raised by this appeal. The proper construction of sections 74 and 41 of the RTA are undoubtedly questions of law but in our view they do not genuinely arise for consideration. That is because the Tribunal only referred to these provisions in the event that it was in error in the findings which it made about the identity of the original parties to the tenancy agreement and the original amount of the rental.
2. The Tribunal's observations about the application of these provisions of the RTA were not essential to the Tribunal's reasoning or its decision. They would only become essential if the findings made by the Tribunal as to the identity of the contracting parties and the amount of the rent could be successfully challenged. However these primary findings are findings of fact, not law.
3. The conclusion as to whether the facts as found produce the result that the parties have reached a legally binding agreement is a question of law: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd ([2016] HCA 26; 2016) 260 CLR 1 at [27]; Doolkoora Pty Ltd v Stumpy Gully Holdings Pty Ltd [2024] VSC 155 at [377]. However in order to determine that question it is necessary for various findings of fact to be made. Those factual findings include the identity of the contracting parties.
4. In this appeal, SPL did not dispute that a binding residential tenancy agreement had been reached. SPL's contention was that the tenant was a related entity rather than SPL itself. That is a question of fact.
5. Similarly, the proper construction of the definition of "tenant" in section 3 of the RTA does not in our view genuinely arise for determination in this appeal. To adopt the language of section 3 of the RTA, SPL did not dispute that a person had the right to occupy the Premises under a residential tenancy agreement. Its case was that this person was Sanctuary Place Pty Ltd. Again, that is a question of fact.
6. The question whether a finding is against the weight of the evidence is a question of fact, not of law: Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 156; James v Jandson Pty Ltd [2022] NSWSC 1686 at [53]. It is for this reason that cl 12(1) of Schedule 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal against a decision of the Consumer and Commercial Division of the Tribunal, even if no question of law arises, if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because, among other things, the decision of the Tribunal was against the weight of evidence.
7. The issue of whether the finding by the Tribunal on 19 June 2024 that a residential tenancy agreement existed between JAM and SPL was a final determination creating an issue estoppel undoubtedly raises a question of law. However because of the findings which the Tribunal made in its reasons dated 20 September 2024, it was unnecessary for the Tribunal to address that question. Similarly, the approach and reasoning which we have adopted mean that we also do not need to address that question.
8. It follows that in our view no question of law genuinely arises for determination in this appeal and the issue becomes whether leave to appeal should be granted pursuant to cl 12(1) of Schedule 4 of the NCAT Act.

1. In relation to leave to appeal, SPL's contention was that relevant findings by the Tribunal were against the weight of evidence. SPL did not contend that the Tribunal decision was not fair and equitable, or that significant new evidence had arisen.
2. As JAM submitted, for the Appeal Panel to conclude that a finding by the Tribunal was against the weight of evidence would require us to form the view that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach.
3. As we have set out at [22]-[25], we may grant leave to appeal if we are satisfied that SPL may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence. This evaluation also involves discretionary considerations, as set out at [25].
4. SPL's principal contention was the Tribunal's finding that it was the tenant, rather than Sanctuary Place Pty Ltd, was against the weight of evidence. In circumstances where no written tenancy agreement was produced, other contemporaneous documents are clearly important in identifying the contracting parties. SPL drew our attention to a number of documents which referred to "Sanctuary Place", including the MOU. However, once it is appreciated that SPL also used the business name "Sanctuary Place Living" then many of these documents are at best equivocal in identifying the contracting company.
5. Whilst the internal emails between SPL and its accountant in December 2020 and January 2021 (Bundle pages 119-125) did make reference to Sanctuary Place Pty Ltd, they do not specifically relate to the Premises. The emails and their significance are somewhat elliptical. The email chain concludes with an email from SPL dated 14 January 2021 which states that "The solution we have come up with is to register the business name Sanctuary Place Rentals under the entity SPL Living Pty Ltd ( ABN 65 637 152 106)." This appears to indicate that at one point in time it was intended that SPL would use another business name which included the words "Sanctuary Place".
6. On the other hand other contemporaneous documents such as the Remittance Advice and the Bill Activity Statement clearly identify SPL as the tenant. We see no error in the Tribunal placing significance on the Bill Activity Statement. Nor do we see any error in the Tribunal concluding that the Bill Activity Statement emanated from SPL. In addition to the matters referred to by the Tribunal in its reasons at [28]-[31], Ms Warham gave unequivocal evidence to the effect that she received the document from SPL (Bundle page 32 paragraph 12). Ms Warham was not cross-examined.
7. In these circumstances we are not persuaded that the finding that SPL was the tenant was against the weight of evidence. On the contrary, we consider that the weight of evidence supported the finding that SPL was the tenant.
8. As we have indicated, in these circumstances it is unnecessary for us to consider whether the finding by the Tribunal on 19 June 2024 that a residential tenancy agreement existed between JAM and SPL was a final determination creating an issue estoppel.
9. As to the rental amount, the Tribunal's primary finding at [35] of the reasons was that the rental was $3,033.33 per month. That finding is supported by the Bill Activity Statement and the Remittance Advice. Whilst some other documents, such as the Tax Invoice, refer to different amounts, including amounts of $2800, $3,500 and $3,266.67, we do not consider that the Tribunal's finding that the rental was $3,033.33 was against the weight of evidence.
10. Nor do we consider that the Tribunal's finding at [41] that various other payments should not be credited towards or set- off against rental owing was against the weight of evidence. This finding was supported by Ms Warham's evidence at Bundle pages 72-73 paragraph 13 and she was not cross- examined.
11. Moreover even if the correct rental payable by SPL was indeed $2,800 per month as it contended, and assuming, in its favour, that the tenancy came to an end in January 2024 rather than April 2024, the rent outstanding would be $14,000, only $1,000 less than the amount ordered by the Tribunal to be paid. In these circumstances, even if we were otherwise wrong, we do not consider that SPL may have suffered a substantial miscarriage of justice on this issue justifying the grant of leave to appeal.
12. SPL also contested the Tribunal's statement at [42] of its reasons that whether or not Ms Warham had made erroneous payments or statements was beyond the scope of the proceedings. However it cannot be gainsaid that in order to establish that Ms Warham had made erroneous statements or payments it would have been necessary for SPL, as a matter of fairness, to challenge Ms Warham on the statements she had given and squarely put the issue to her in cross examination. SPL did not do so.

1. It follows from our reasoning that we consider that leave to appeal should be refused and that the appeal should be dismissed.
2. Both parties provided written submissions on costs, which we have reviewed. In light of those submissions we should emphasise that we would only consider making an order in relation to the costs of this appeal, not in relation to the costs of the proceedings at first instance in the Tribunal. No order for costs was made by the Tribunal and no appeal was lodged in relation to the question of costs of the proceedings in the Tribunal.
3. We note that in this matter the question of costs is governed by section 60 of the NCAT Act. Rule 38 of the Civil and Administrative Tribunal Rules 2014 does not apply because of the relatively small amount in issue. Our preliminary view is that special circumstances do not exist within the meaning of section 60(2) of the NCAT Act and that accordingly no order should be made in relation to the costs of this appeal. However we will make orders to give the parties an opportunity to make further submissions on costs in light of these reasons if they so choose.
4. We make the following orders:

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) If either party wishes to apply for a costs order in relation to this appeal they must lodge supporting written submissions within 14 days of the date of these orders.

(4) The other party may respond with written submissions lodged within 21 days of the date of these orders.

(5) Any party applying for costs may lodge written submissions in reply within 28 days of the date of these orders.

(6) In any costs submissions, parties must indicate whether or not they consent to the Appeal Panel deciding the question of costs "on the papers", that is by considering the written submissions, rather than also having an oral hearing.

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.