Sun v Theophilou

92 Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment

(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has -

(a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct, or

(b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person).

(2) The termination order may specify that the order for possession takes effect immediately.

(3) A landlord may make an application under this section without giving the tenant a termination notice.

(4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

1. At the final hearing, the Tribunal made the following findings in relation to the incident on 31 July 2024 which are relevant to this appeal:

(1) Ms Sun yelled directly at one of the agents and on several occasions "got into her personal space while she was doing so."

(2) Ms Sun's personal conduct intimidated the agent.

(3) Ms Sun's conduct was 'sufficiently grave to constitute an objectively serious threat to, or abuse of the two agent (sic) who were present, within the meaning of s 92(1)(a)'.

(4) Ms Sun intentionally engaged in conduct during the argument that would reasonably likely cause the agents to be intimidated or harassed by Ms Sun.

(5) Ms Sun's actions were sufficiently serious to make a termination order under s 92 of the RT Act.

1. The Tribunal then considered relevant factors regarding its discretion to terminate the tenancy and determined that the findings of fact justified an order for termination.
2. The Tribunal's final orders included the following:

"1 The Tribunal makes an order under section 92 of the Residential Tenancies Act 2010, terminating the tenancy immediately where the tenants or occupant has threatened, abused, intimidated or harassed the landlord, the landlord's agent, an employee or contractor.

2 The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 8 April 2025.

3 The tenants are to pay the landlord a daily occupation fee, at the rate of $150.00 per day from the date after the date of termination, 26 March 2025, until the date vacant possession is given."

1. The Notice of Appeal was signed by the appellants on 7 April 2025 and lodged on 17 April 2025. It states the appellants received the Tribunal's decision on 28 March 2025.
2. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ('the Rules') the application should have been lodged within 14 days of the appellants receiving the Tribunal's decision, i.e. by 11 April 2025.

1. Section 41 of the NCAT Act allows the Appeal Panel to make an order extending time for the filing of the appeal, if satisfied that leave should be granted.
2. The relevant factors to consider, as identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] include the length of the delay, the reasons for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent.
3. The appellants' explanation for their delay is that they sought the assistance of a Mandarin interpreter prior to filing the appeal. Further, because the Notice of Appeal was signed on 7 April 2025, it would not arrive at the registry by post in time.
4. This is not a particularly satisfactory explanation for the delay. However, the delay is relatively short and there is no identifiable prejudice to the respondent (who stated in the Reply to Appeal that he accepts the appeal was lodged within time).
5. However, for the reasons which we explain below, there is no prospect of success in the appeal.
6. Therefore, we are not persuaded that an extension of time should be granted for the filing of the appeal.

1. The following material was before the Appeal Panel:

(1) Notice of Appeal

(2) Reply to Appeal (amended 19 May 2025)

(3) Appellant's submissions dated 25 July 2025

(4) Folder of appellants' appeal documents lodged 5 August 2025

(5) Respondent's tender bundle lodged 29 August 2025

1. The Notice of Appeal identifies five grounds of appeal, which were detailed in the appellants' written submissions:

(1) The Tribunal erred in determining that the landlord's inspection on 31 July 2024 was lawful;

(2) This ground was not pressed at the hearing;

(3) In relation to the finding of intimidation, the Tribunal erred by allowing extraneous matters to guide or affect the Tribunal by having regard to the submission of the landlord's advocate "that two of the three property managers at the managing agents are now too frightened to go to the property..."

(4) In relation to the finding of intimidation, the Tribunal failed to consider that the tenant was resisting an attempt to inspect the premises which at the time was unlawful;

(5) The Tribunal failed to differentiate between a "right of inspection" and a right to enforce a "right of inspection" and failed to find that, in the face of the tenants' resistance, the landlord had a duty to seek an order from the Tribunal for access to the premises, rather than "self-enforce the purported right."

1. The Appeal Panel granted the appellants leave to raise a further ground of appeal: that the right to inspect on 31 July 2024 did not exist because the landlord's agent did not comply with s 57(2)(b) of the RT Act by producing the consent document provided for in s 57 of the RT Act.

1. The Notice of Appeal states the appellants seek the following orders:

(1) That order (1) of the orders made on 25 March 2025 be varied to read "possession is granted to the landlord from 26 March 2025."

(2) That order (3) of the orders made on 25 March 2025 be varied to remove the word "termination".

1. An appellant may appeal from a final decision of the Tribunal as of right on a question of law or with leave of the Appeal Panel on other grounds: NCAT Act, s 80(2)(b).
2. Since this is an appeal from a decision of the Consumer and Commercial Division, further limitations apply in considering any grant of leave where the appeal is based on grounds that do not raise a question of law: NCAT Act, Sch 4, cl 12. The principles pertaining to leave to appeal from decisions of the Consumer and Commercial Division of the Tribunal are well established: Collins v Urban [2014] NSWCATAP 17 at [65]- [84].
3. The Notice of Appeal states the appellants are not seeking leave to appeal. However, the grounds of appeal challenge a number of findings of fact and leave to appeal would be required.
4. With regard to our finding regarding the utility of the appeal, it is not necessary for disposing of the appeal to distinguish between grounds that raise questions of law and grounds that raise other matters. The principles distinguishing the difference between questions of law and other errors of a type that require leave to appeal are set out in INA Operations Pty Ltd ATF INA Operations Trust #6 t/as Ingenia Holidays v Shojai [2024] NSWCATAP 162 at [43]- [44].
5. An internal appeal is not merely an opportunity for an unsuccessful party to reargue their case at first instance. An error on a question of law; or an error of a type that justifies leave to appeal, must be established: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

"The appellants vacated the premises in a timely paid up way in accordance with the Orders then applicable. Ms Sun however should not be left with the stain of intimidation and harassment against her name."

1. The fact that the Tribunal's orders of 25 March 2025 have been carried out effectively means the appeal against the decision is of no utility.
2. The Appeal Panel should not entertain appeals where the decision will have no practical consequence for the parties (see, eg, Joiner v Commissioner of Police (NSW) [2023] NSWCATAP 254 at [28]; Ugur v Bridge Housing Limited [2024] NSWCATAP 203 at [26]).
3. At the appeal hearing, the appellants' counsel argued the appeal is "not moot at all because part of the order refers to the finding of intimidation."
4. In their written submissions, the appellants state "the findings of intimidation and harassment ... should be reversed."
5. However, pursuant to s 80(1) of the NCAT Act, an appeal is against a decision of the Tribunal, not against a finding of fact.
6. Even if we did entertain the appeal and it was successful, there is nothing to remit to the Tribunal for redetermination: the appellants have vacated the premises.
7. Moreover, to have the matter remitted to the Tribunal for a hearing because an appellant considers the wording of the orders - with which she has complied - a 'stain on her name' would be an unjustifiable burden on the administration of justice. Tribunal hearing time is a scarce public resource, with a great many parties seeking access to justice. The Tribunal reconsidering proceedings that have become merely theoretical due to the orders of 25 March 2025 having been performed is not consistent with principles of public policy, nor the just, quick and cheap resolution of the real issues in proceedings: NCAT Act, s 36(1).
8. Nor could the Appeal Panel vary the decision on the terms sought by the appellants:

(1) Order (1) cannot be varied to read "possession is granted to the landlord from 26 March 2025" because an order terminating the tenancy is a prerequisite to an order for possession;

(2) Order (3) cannot be varied to remove the word "termination" because a daily occupation fee is only payable upon termination of the tenancy agreement.

1. We acknowledge Ms Sun feels strongly about the dispute, and, in particular, objects to the finding that she intimidated and harassed the agents. However, this is not a basis to allow the appeal.
2. The respondent seeks an order for costs. We will allow both parties to provide submissions on this issue.

(1) An extension of time to file the appeal is refused.

(2) The appeal is dismissed.

(3) If the respondent seeks costs of the appeal, the respondent must file and serve submissions in support of such an application within 14 days of the publication of these reasons.

(4) The appellant has a further period of 14 days in which to file and serve submissions opposing the respondent's costs application.

(5) Submissions are limited to 3 pages.

(6) Any submissions on costs should include a submission as to whether the Appeal Panel can determine costs of the appeal on the papers and by so doing dispense with a further 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.