Thomas v Apartment Holdings Pty Ltd [2026] NSWCATCD 20;

1. This is an application by a tenant pursuant to section 125 of the Residential Tenancies Act 2010 (NSW) ("RTA"). The respondents are mortgagees who have obtained an order for possession from the Supreme Court of NSW ("the Supreme Court"). The property the subject of the dispute is a house in The Hill, NSW, 2300 ("the Property").
2. The application was lodged on 11 December 2025. On that date, an application for an urgent hearing was also lodged by the applicant. The application for an urgent hearing date was granted and the Tribunal listed the matter for hearing before me on 5 February 2026. The hearing time allocated was 3 hours.
3. During the hearing the applicant represented himself.
4. Mr Rogers of counsel represented the respondents.
5. When the proceedings commenced the applicant sought to prevent Mr Rogers and those instructing him from appearing. There was an allegation that they were conflicted and other allegations about their appropriateness to appear. There was no application listed before me seeking such relief. The applicant also asserted that a summons to give evidence had been issued, the effect of which required Mr Rogers to attend to give evidence. The applicant could not locate or identify such a summons and towards the end of the hearing it appeared that the applicant had requested that summonses be issued but that those requests had not been acceded to by the Tribunal.
6. The applicant also requested an adjournment so that the issue of "conflicts" could be determined. I did not accede to that applicant. My reasons are as follows:

(a) the matter has been given an urgent hearing date, at the request of the applicant, and, for the reasons related to the expiry of a stay on execution of a writ of possession, it was important to hear the matter;

(b) the "conflicts" issues the applicant sought to raise did not on their face appear material to the section 125 application;

(c) having regard to section 36 of the Civil and Administrative Tribunal Act 2013 NSW ("CAT Act") that procedure should facilitate the quick, just and cheap determination of disputes, it is appropriate that the hearing proceed so as to avoid further delay and costs to the parties.

1. During the hearing the applicant also sought information as to the Bar Association identification number for Mr Rogers. I requested from the applicant information on the relevant provision by which I had power to compel that information but that was not provided. In any event, it seemed to me that issue would not have any bearing on the section 125 application.
2. Finally, the applicant also contended that he had appealed a decision of the Legal Aid Commission, presumably pursuant to section 56, with the consequence that under section 57 of the Legal Aid Commission Act 1979 (NSW) the Tribunal was required to adjourn the proceedings. However, despite requests to do so, the applicant did not provide the Tribunal with the documents constituting the appeal so I was not satisfied that an appeal pursuant to section 56 was on foot.
3. During the hearing the applicant tendered a small bundle of documents which were marked exhibit 1. These comprised a Tenant Fact Sheet produced by the Tenant's Union of NSW and email exchanges in May 2025 between the applicant and the Supreme Court and between the tenant and a tenant advocacy service known as Hunter Tenants.
4. I will also mark as exhibit 2 a further bundle of documents handed up during the hearing which comprised a document entitled Statutory Declaration but which had not been correctly executed, a Notice to Vacate to the effect that the occupier must vacate the Property before 6 March 2026 at 12:30pm, some emails and an extract of a lease commencing January 2025.
5. The applicant had not served exhibits 1 and 2 in accordance with the Tribunal's orders and in the hearing said that he had decided not to provide those documents to the respondents for reasons concerning the conduct of these proceedings. I have decided to permit these documents to be relied on notwithstanding the applicant's lack of a proper explanation as to why he did not serve those documents or lodge them in accordance with the Tribunal's directions because the applicant emphasised that these were important to his case.
6. During the hearing the applicant was asked by the Tribunal a number of times to identify the evidence on which he intended to rely and informed that the Tribunal needed the evidence to be identified so that the parameters of the evidence before the Tribunal was ascertained. The applicant did not identify for the Tribunal material for tender in addition to exhibits 1 and 2 although the applicant had lodged many hundreds of pages of documents since 11 December 2025, including more than 100 pages overnight (according to the applicant at 1:00am on 5 February 2026).
7. The respondent read an affidavit of Ms Rhonda Galayini dated 17 December 2025 and tendered the exhibit to that affidavit, which I marked exhibit A.

1. My findings of fact are set out below.
2. On 23 June 2025 the applicant entered into a written residential tenancy agreement with the registered proprietors ("the First Lease"). The agreement expired on 6 January 2025.
3. On 9 June 2024 the applicant entered into another residential tenancy agreement with the registered proprietors ("the Second Lease"). The term of the Second Lease commenced 7 January 2025 and was to end on 5 January 2027 (Ex A, p. 166). The Second Lease recorded that at the date of entry there was a rental credit of $22,000.00 in respect of the First Lease and that there would be a payment in June 2024 of $9,000.00 with the consequence that the prepayment of rent would then be $37,100.00.
4. There is no dispute that no rent is currently pre-paid.
5. On 11 September 2024 the respondents entered into a loan agreement with the Palace Property Pty Ltd ("Palace Property"). The loan was secured by a mortgage over the Property (Galayini, [12(ii)] - [13]). The loan was guaranteed by the registered proprietors.
6. Ms Galayini deposes that at the time of the entry into the loan agreement the respondents did not know of any lease later than the First Lease (Galayini, [15]). The difficulty with that evidence is that it is an assertion because Ms Galayini purports to give evidence of the knowledge of the other respondents, and has not, at the least, set out the basis of her understanding. On the other hand, I also do not have evidence that satisfies me that the respondents had knowledge of the Second Lease.
7. Palace Property defaulted on the loan in early 2025.
8. On 8 April 2025 the respondents in this application commenced proceedings against Palace Property and the guarantors by way of statement of claim in the Supreme Court seeking possession, judgment for $3,250,000.00 and interest.
9. On 14 April 2025 the respondents served on the applicant a copy of the statement of claim and a Notice to Occupier. It is common ground that the applicant was served in April 2025.
10. The Notice to Occupier included the following (Ex A, p. 93):

"1. You have been served with a copy of the statement of claim in these proceedings. The plaintiff is claiming possession of part or all of the land you are occupying.

2. You may apply to the court for an order that you be added as a defendant in the proceedings.

3. If you do not apply to the court within 10 days after this notice is served on you:

The court may enter judgment in your absence, and

You may be evicted from the land."

1. In May 2025 the applicant sought to 'lodge' a document with the Supreme Court in the proceedings brought by the respondents against Palace Property and the guarantors/registered proprietors. That document was addressed to the respondents seeking a lease with the respondents. The Supreme Court registry advised the applicant that the documentation was a communication between parties and rejected the lodgement. The Supreme Court registry informed the applicant that he would need to file a notice of motion, presumably to be able to participate and seek orders as an occupier. The applicant forwarded (at least some of the) emails from the Supreme Court to Hunter Tenants who informed the applicant he should send the documentation to the respondents' solicitors and that it would be unethical for them not to take it into account. These emails are contained in exhibit 1.
2. The applicant did not file any notice of motion or make any application in the Supreme Court proceedings.
3. On 14 November 2025 the Supreme Court made orders for possession of the Property (Ex A, p. 312).
4. On 11 December 2025 the applicant commenced these proceedings in the Tribunal.

1. Section 125 of the RTA is in the following terms:

"125 Order for tenancy against person with superior title

(1) This section applies if proceedings for the recovery of possession of residential premises are commenced before a court or the Tribunal (whether under this Act or otherwise) by a person (the plaintiff) who is not the landlord or former landlord under the agreement.

(2) An application may be made under this section by a person who is or was, when the proceedings were commenced, in possession of the residential premises as -

(a) a tenant under a residential tenancy agreement, or

(b) a former tenant holding over after termination of a residential tenancy agreement.

(3) The application may be made to -

(a) the court or Tribunal before which the proceedings are pending, or

(b) if the proceedings have been completed - the Tribunal,

and must be made within the period prescribed by the regulations after the applicant was given notice of the proceedings or (if no notice was given) within a reasonable time after the completion of the proceedings and before possession of the premises is recovered.

(4) The court or Tribunal may, on such an application, and if it thinks it appropriate to do so in the special circumstances of the case, make an order vesting a tenancy over the residential premises in the applicant.

(5) The plaintiff is to be the landlord under the tenancy and the tenancy is to be on such terms and conditions as the court or Tribunal thinks fit, having regard to the circumstances of the case.

(6) Such an application or order may be made before possession of the premises is recovered, even though -

(a) notice was not given to the applicant of the proceedings brought by the plaintiff, or

(b) the proceedings brought by the plaintiff have been completed."

1. Mr Rogers submitted that the Supreme Court proceedings were not "completed" within the meaning of section 125(3)(b) with the consequence that this application could not be brought in the Tribunal but should have been brought in the Supreme Court. Clearly, the respondents in these proceedings maintain claims for monetary relief in the Supreme Court proceedings which have yet to be determined.
2. This issue turns extent on the construction of the word "proceedings" as used in section 125. The question is whether only the recovery of possession component of the proceedings needs to be completed for section 125(3)(b) to be satisfied or whether the whole of the proceedings in the relevant court which include, but are not limited to, recovery of possession, need to be completed.
3. The question is whether the words "for the recovery of possession of residential premises" limit the meaning of the word "proceedings" in section 125(3)(a). On the one hand, section 125(1)(a) refers to proceedings for the recovery of possession of residential premises in describing the relevant proceedings which may lead to an application under section 125.
4. However, to limit the meaning of the word "proceedings" in section 125(3)(a) to only that part of proceedings which deal with the recovery of possession would not be consistent with the usual meaning of the word "proceedings". Moreover, it would lead to a situation where multiple proceedings would more often arise in relation to rights in respect of the same property and the same mortgagee. As this application demonstrates, there are proceedings pending before the Supreme Court brought by the respondents against the guarantors/registered proprietors which relate to the Property. The avoidance of a multiplicity of proceedings revolving around the same property will be more likely if any application under section 125 is required to be brought in such proceedings which are pending notwithstanding that the possession component of such proceedings has been determined.
5. For these reasons, I accept the respondents' submission that section 125(3)(b) was not satisfied when the application was lodged in the Tribunal and that the application should have been brought in the Supreme Court. It follows that the application is to be dismissed.
6. In the event that my conclusion as to the proper the construction of section 125(3) is incorrect, I turn to consider the issue of the time for commencement of the application in the Tribunal.
7. Clause 39(5) of the Residential Tenancies Regulation 2019 NSW ("the Regulation") prescribes that for the purposes of s 125(3) an application must be commenced within 30 days of the date the applicant was given notice of the proceedings for possession.
8. The applicant was served with a copy of the Supreme Court proceedings in April 2025. These proceedings were commenced in the Tribunal on 11 December 2025. Clearly, the application was filed more than 30 days after the applicant was given notice of the proceedings for possession and consequently the application was filed out of time.
9. The next issue is whether the Tribunal should extend the time for filing this application to 11 December 2025 pursuant to section 41 of the CAT Act.
10. I have concluded that I should not extend the time for filing this application. I have reached that conclusion for the following reasons:
11. First, whilst the applicant was perhaps not given fully accurate advice as to sending the letter to the respondents' solicitors he was aware in May 2025 that he could file a motion and participate in the Supreme Court proceedings. The Supreme Court registry informed him of the need to file a notice of motion. The Notice to Occupier informed him that orders including eviction may be made if he did not appear in the Supreme Court. The Tenant Fact sheet in exhibit 1 gave advice to the same effect as the Notice to Occupier with the additional information that in the Supreme Court there was a risk of orders for costs being made against a tenant. Finally, the email from Tenants Union advised that it would be unethical for the solicitor to not take into account the applicant's documentation but it did not advise that it would be unethical for the solicitor to not bring the communication to the attention of the Supreme Court. Moreover, in circumstances where the applicant was given notice of the Supreme Court proceedings, it would not ordinarily follow that the obligations of legal representatives in ex parte proceedings were engaged.
12. Second, and related to the matters in the preceding paragraph, I am not satisfied on the evidence adduced that the delay has been adequately explained by the applicant. The applicant does not say he did not know that he should not commence proceedings in the Supreme Court. He also does not say he believed he could not do so.
13. Third, the 30 day time limit contemplates that applicants will act relatively promptly. The extension of time to 11 December 2025 is significant, comprising at least 6 calendar months by way of extension of a time period that is the equivalent of 1 month. I do not consider the circumstances of this case to justify such a significant extension of time.

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.