Udy v Barton

Bebonis v Angelos (2003) 56 NSWLR 127; [2003] NSWCA 13

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734

Brahmbhatt v Osorio [2023] NSWCATAP 188

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

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

Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6

Donohoe v Albulario [2025] NSWSC 9

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

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

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

Ibrahim v Taylor [2022] NSWCATAP 308

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

Merrick v Hines [2021] NSWCATAP 108

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Nayar v Uren [2024] NSWCATAP 47

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250

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

J R S Forbes, Justice in Tribunals (Federation Press, 6th ed, 2024)

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)

1. This is an appeal by Mr Michael Udy (the Appellant) against orders made by the Tribunal (the Tribunal below) concerning the termination of a fixed term residential tenancy agreement between the Appellant and Mr Graham Barton (the Respondent).
2. The Respondent did not appear at the hearing for this appeal. It is true that an Appeal Panel must afford a party to proceedings before it with a reasonable opportunity to be heard and a failure to do so would be a denial of procedural fairness (or natural justice): Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Re Refugee Tribunal) at [100]; Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2) and (5)(c). However, a party is not denied procedural fairness if the party does not, without a reasonable explanation, take up a reasonable opportunity to be heard of which the party has been made aware: J R S Forbes, Justice in Tribunals (Federation Press, 6th ed, 2024) at [12.11]; Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5]; Merrick v Hines [2021] NSWCATAP 108 at [24]−[54]; Nayar v Uren [2024] NSWCATAP 47 at [24].
3. Having regard to the following matters, we decided the hearing should proceed despite the absence of the Respondent:

(1) The Respondent was provided with additional time to appear because the commencement of the hearing was delayed by half an hour.

(2) Unsuccessful searches for the Respondent or the Respondent's agent were undertaken outside the hearing room before the hearing commenced.

(3) The material on file for this appeal indicated that the Respondent had been notified of the hearing date by the Appeal Registry. In addition, the Respondent had previously appeared at interlocutory stages of this appeal, including a hearing for a stay of the orders of the Tribunal below for which the Appellant applied.

(4) Neither the Respondent nor his agent contacted the Appeal Registry before the hearing to provide an explanation for the Respondent's non-attendance.

(5) Clause 9 of Civil and Administrative Tribunal Regulation 2022 (NSW) would in any event allow the Respondent to apply to the Appeal Panel to set aside or vary its decision if the Panel was satisfied that the Respondent's absence resulted in the Respondent's case not being adequately put to the Panel.

1. The non-appearance of an opposing party does not result in the party waiving the right to have the proceedings determined according to law: Bebonis v Angelos (2003) 56 NSWLR 127; [2003] NSWCA 13 at [49]. Consequently, the Appellant is not relieved of the burden of satisfying the Appeal Panel that there are sufficient grounds to allow the appeal.
2. We are not satisfied that there are sufficient grounds to allow the appeal. These are our reasons for dismissing the appeal.

1. The Respondent owns a unit in Penrith, NSW (the leased premises). It was leased to the Appellant under a residential tenancy agreement entered into by the parties on 22 December 2022 (the 2022 tenancy agreement). The 2022 tenancy agreement provided for a fixed term commencing on 25 December 2022 and ending on 23 December 2024.
2. The Respondent gave the Appellant a termination notice on 23 September 2024 (the Respondent's termination notice). The notice stated that the Appellant was required to give vacant possession of the leased premises on 23 December 2024. The Appellant does not dispute that he was given the notice.
3. The Appellant failed to vacate the leased premises by the 23 December 2024. The Respondent then made an application to the Tribunal on 24 December 2024 for a termination order under s 84 of the Residential Tenancies Act 2010 (NSW) (RT Act). The Appellant responded by lodging an application on the same day for an order to vacate or stay the Respondent's termination notice.
4. Both applications were heard by the Tribunal below on 30 January 2025 after an unsuccessful conciliation conference between the parties requested by the Tribunal earlier that day. On 6 February 2025, the Tribunal made the termination order sought in the Respondent's application along with some related orders. However, the Tribunal dismissed the Respondent's application.
5. On 20 February 2025, the Appellant lodged this appeal against the decision of the Tribunal below. The Appellant also made an application for a stay of the Tribunal's decision pending the determination of this appeal. A differently constituted Appeal Panel dismissed the stay application on 7 March 2025.
6. The Appellant informed the Appeal Panel by email before the hearing for this appeal (and then confirmed at the hearing) that he had been evicted from the leased premises on 8 May 2025 by Sheriff's officers. He said the eviction was pursuant to a warrant for possession obtained by the Respondent because of the Tribunal's decision. The Appellant said at the hearing that he has not yet secured alternative rental accommodation. He also said that the Respondent refused to grant him further access to the leased premises (apart from a brief time during the day of eviction) to recover his remaining possessions "unless I supply them with a storage or removalists booking and then on only one occasion". We are prepared to accept that this reflects the Appellant's current situation in the absence of submissions to the contrary from the Respondent.

1. The RT Act regulates the rights and obligations of landlords and tenants under residential tenancy agreements. There is no dispute that the 2022 tenancy agreement was a fixed term agreement. A fixed term agreement is defined by s 3(1) of the RT Act to mean a residential tenancy agreement for a tenancy for a fixed term.
2. At the time the Appellant was given the Respondent's termination notice, s 84 of the RT Act provided as follows:

84 End of residential tenancy agreement at end of fixed term tenancy

(1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.

(2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.

(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 and the fixed term of the original fixed term agreement has ended.

1. An application made to the Tribunal for a termination order must be made within 30 days after the termination date specified in the relevant termination notice: RT Act, s 83(2)(a); Residential Tenancies Regulation 2019 (NSW) (RT Regulation), cl 39(2).
2. It is important to note that s 84 of the RT Act did not at the relevant times require a landlord to specify a reason for terminating the agreement. Consequently, a termination on this basis was sometimes referred to colloquially as a type of "no grounds" termination. A landlord's right to terminate without specifying a ground was removed on 19 May 2025 with the substitution of s 84 by Sch 1[12] to the Residential Tenancies Amendment Act 2024 (NSW). However, the RT Act as in force before the substitution continues to apply to termination notices given before the 19 May 2025: RT Act, Sch 2, cl 36. Accordingly, s 84 as in force before its substitution continues to apply to the termination of the 2022 tenancy agreement.
3. Section 83(1) of the RT Act provides that, if the Tribunal makes an order terminating a residential tenancy agreement under the Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.
4. Section 114 of the RT Act 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(1) of the RT Act enables the Tribunal, on application by a tenant or when considering an application for a termination order or in relation to a termination notice, to declare that a termination notice has no effect or refuse to make a termination order, if satisfied that the notice or application was a retaliatory notice or application. A retaliatory notice or application includes where the action of the landlord was motivated by the tenant taking or proposing to take action to enforce a right of the tenant under the residential tenancy agreement, the RT Act or any other law: RT Act, s 115(2)(b).
2. Section 121(1) of the RT Act provides that the principal registrar of the Tribunal may, on the application of a person in whose favour an order for possession was made, issue a warrant for possession of the residential premises concerned if the principal registrar is satisfied that the order or a condition of suspension of the order has not been complied with.
3. The Tribunal has general jurisdiction to deal with matters arising under both the former s 84 and s 114 of the RT Act: NCAT Act, s 29(1). The exercise of the functions conferred or imposed by those sections are allocated to the Consumer and Commercial Division of the Tribunal: NCAT Act, Sch 4, cl 3(1). A decision of the Tribunal determining a matter over which it has general jurisdiction is a general decision: NCAT Act, s 29(3).

1. The were two applications before the Tribunal below: one by the Respondent and the other by the Appellant.
2. The application made by the Respondent sought a termination order in relation to the 2022 tenancy agreement (the Respondent's termination application). The Respondent contended that he had served the Appellant with a termination notice on 23 September 2024 in accordance with s 84 of the RT Act. The Respondent asked the Tribunal to make an order under s 84 terminating the agreement on 23 December 2024 (which was the date that the fixed term for the tenancy ended) because the Appellant had not yet vacated the leased premises as required by the Respondent's termination notice.
3. The application by the Appellant sought the vacation or stay of the Respondent's termination notice given by the Respondent. It appears from the reasons of the Tribunal below that the basis for the Appellant's application was a claim that the termination notice was a retaliatory notice for the purposes of s 115 of the RT Act. The Tribunal noted in its reasons that the Appellant did not press his application at the hearing after conceding the termination notice was not retaliatory.
4. The Appellant confirmed this characterisation of his application in his oral submissions at the hearing for this appeal. The Appellant also confirmed that he was not seeking to appeal against the decision of the Tribunal below to dismiss his application. Accordingly, we shall proceed on the basis that the only orders of the Tribunal below challenged in this appeal are those made with respect to the Respondent's termination application.
5. The Tribunal below made the following orders concerning the Respondent's termination application:

(1) An order under section 84 of the RT Act terminating the 2022 residential tenancy agreement at the end of the fixed term tenancy (the Tribunal's termination order).

(2) An order that the 2022 tenancy agreement was terminated on 23 December 2024 and that vacant possession be given to the Respondent on the date of termination (the Tribunal's order for possession).

(3) An order under section 114 of the RT Act that the the Tribunal's order for possession be suspended until 20 February 2025 (the Tribunal's suspension order).

(4) An order for the Appellant to pay the Respondent a daily occupation fee, at the rate of $50.00 per day, from the day after the date of termination on 24 December 2024 until the date that vacant possession is given.

(5) 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.

1. The Tribunal gave the following reasons for its decision to make these orders:

(1) The Tribunal found the Respondent's termination application had been lodged within the time permitted by s 83 and former s 84 of the RT Act and cl 39 of the RT Regulation. Accordingly, the Tribunal decided it could proceed to hear and determine the matter.

(2) The Tribunal noted that the Tribunal must, on the application of the landlord, make a termination order under the former s 84(3) of the RT Act 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.

(3) The Tribunal was satisfied that the notice of termination was given in accordance with the former s 84 of the RT Act and that the Appellant had not vacated the premises as required by the Respondent's termination notice. Accordingly, the Tribunal found that it "must" make a termination order and an order for possession in favour of the Respondent.

(4) The Tribunal decided that it was appropriate to make an order suspending the operation of the order for possession because it would take some time for the Appellant to vacate the leased premises.

(5) The Appellant submitted that the order for possession should be suspended for 4 weeks. Alternatively, the Appellant submitted he should be allowed to remain in the leased premises until the Respondent completed the renovation work he intended to undertake or the Appellant should be allowed to pay higher rent.

(6) The Respondent rejected the Appellant's proposals and instead submitted that the order for possession be suspended for 1 week only.

(7) The agent for the Respondent gave evidence (which the Tribunal appeared to accept) that the Respondent needed to renovate the leased property quickly with a viewing to selling it because he had suffered a back injury and was in financial distress.

(8) The Tribunal adopted the middle course of suspending the order for possession for 2 weeks. It gave the following reasons for doing so:

"In balancing the needs of each party, I consider it appropriate to suspend the order for possession for a period of 2 weeks as the tenant has had ample time to secure alternate accommodation, he has a possible place to live in Leura, and the financial hardship the landlord will continue to face if vacant possession is not given by the tenant."

(9) As noted above, the Tribunal considered it appropriate to make an order under s 114(2) of the RT Act for the Appellant to pay an occupation fee of $50 per day from 24 December 2024 until he vacated the leased premises.

1. The Appeal Panel has had regard to the following material in determining the appeal:

(1) The Notice of Appeal lodged by the Appellant on 20 February 2025.

(2) A Reply to Appeal lodged by the Respondent on 21 March 2025. Copies of the 2022 tenancy agreement and the Respondent's termination notice are annexed to the Reply.

(3) A further Reply to Appeal lodged by the Respondent on 6 May 2025.

(4) A bundle of documents lodged by the Appellant headed "Index of Submissions in 2025/00069914 Michael Udy v Graham Barton 13.05.25 at Parramatta". This bundle includes, among other things, an affidavit sworn by the Appellant for the proceedings in the Tribunal below and a transcript prepared by the Appellant of the parts of the hearing before the Tribunal below on which he seeks to rely.

(5) The following 2 recordings of the hearing before the Tribunal below from which the Appellant says he prepared his transcript:

(a) The file named "Penrith Rm 3 E Yin-1.mp3" (the first sound recording).

(b) The file named "Penrith Rm 3 E Yin-2.mp3 (the second sound recording)

(6) All the interlocutory directions and orders made for this appeal by a differently constituted Appeal Panel.

(7) The orders made by the Tribunal below and the reasons given for those orders.

(8) The applications lodged by each of the parties in the proceedings in the Tribunal below.

(9) The oral submissions made by the Appellant at the hearing for this appeal.

1. We have listened to both sound recordings of the hearing before the Tribunal below. The first sound recording records the presiding member sending the parties to a conciliation conference to see if they could settle their dispute. The second sound recording appears to include what is recorded in the first sound recording. However, it also includes a recording of what transpired after the parties returned from their conciliation conference.
2. The transcript prepared by the Appellant is not a transcript of the entirety of the hearing before the Tribunal below, which the Appellant acknowledged at the hearing for this appeal. We do not question the Appellant's decision to transcribe only part of the hearing before the Tribunal below. This is consistent with the interlocutory direction given by a differently-constituted Appeal Panel on 7 March 2025. The direction required the Appellant to provide a typed transcript of the relevant parts of the hearing on which he relied, together with the sound recording of the entire hearing.
3. That said, there are portions of the hearing which have not been transcribed that provide some significant context. They include the following (based on the second sound recording with the relevant time stamps):

(1) The Appellant indicated that he had prepared for a substantive hearing after the Tribunal asked the parties to participate in another conciliation conference before proceeding to a contested hearing (4:06m-4:30m).

(2) The Tribunal asked the Appellant whether he was seeking to challenge the Respondent's termination notice or just the period before he would need to vacate the leased premises. The Appellant conceded that the termination notice was given to him within the time prescribed by s 84 of the RT Act. He indicated that the principal issue for him was the period allowed for him to seek alternative rental accommodation (46:30m-47:30m).

1. Section 80 of the NCAT Act enables a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. A general decision of the Tribunal is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The orders of the Tribunal under appeal are general decisions because they were made in exercise of its original jurisdiction under the former s 84 and s 114 of the RT Act. Consequently, the Appeal Panel has jurisdiction to determine the appeal.
2. Section 80(2)(b) of the NCAT Act provides that there is an appeal as of right on questions of law for appeals against internally reviewable decisions that are not interlocutory decisions. However, it provides that leave to appeal is required from the Appeal Panel for an appeal on any other grounds.
3. An appeal is not simply an opportunity for a losing party to rerun its case at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Also, as the Appeal Panel said in Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]:

"[It] is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted."

1. The relevant principles concerning the identification of questions of law were recently summarised by the Appeal Panel in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (White) at [21]-[23]:

"21 There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

22 The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A 'pure question of law' does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is 'on' any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

23 Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

'To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal.' "

1. The following are examples of questions of law that seem to us to be relevant to this appeal:

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

(2) A question concerning whether there was a failure by the Tribunal, when exercising a discretion, to take into account a relevant consideration or disregard an irrelevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39−40 (Mason J); Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [26]−[29]; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](5).

1. We note that the quotation above from White refers to the need for the question of law to be a "pure" question of law. Generally, a question is a "pure" question of law 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, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact when the question of law concerns a denial of procedural fairness.
2. Although s 82(2)(b) ordinarily requires leave to appeal on a ground other than a question of law, the power of an Appeal Panel to grant leave is subject to limitations for internal appeals against decisions of the Tribunal in the Consumer and Commercial Division. These limitations are stated in cl 12 of Sch 4 to the NCAT Act. There are 2 limitations that are presently relevant.
3. Firstly, cl 12(2)(b) of Sch 4 to the NCAT Act provides that an internal appeal against a decision of the Tribunal in the Consumer and Commercial Division may only be made on a question of law (as of right) and not on any other grounds (even with leave) if it is an appeal against an order of the Tribunal for the termination of a tenancy under the RT Act and a warrant for possession has been executed in relation to the order. It follows that the Appeal Panel cannot grant leave in this appeal to the extent that it is an appeal against the Tribunal's termination order because a warrant for possession has been executed in relation to that order. As a result, the Appeal Panel can determine an appeal against the Tribunal's termination order only if it raises a question of law.
4. Secondly, for appeals against other decisions of the Tribunal in the Consumer and Commercial Division that do not raise a question of law, cl 12(1) of Sch 4 to the NCAT Act provides that an Appeal Panel can 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. To the extent that this appeal is an appeal against the Tribunal's termination suspension order, it is arguable that cl 12(1) applies to it rather than cl 12(2)(b). If that is the case, the Appeal Panel can grant leave to appeal against the order if one or more of the grounds stated in cl 12(1) are met. We are prepared to proceed on this basis.
2. For there to be is a substantial miscarriage of justice for the purposes of cl 12(1), there must be 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].
3. Without being exhaustive, a decision of the Tribunal will not be fair and equitable if there has been a denial of procedural fairness: Collins at [77(1)]. A decision will be against the weight of evidence 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. The discretion to grant leave is merely enlivened if one of the three grounds mentioned in cl 12(1) of Sch 4 is satisfied; an Appeal Panel must still decide whether it is appropriate to exercise the discretion: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [25]. The general principles applicable to the exercise of the discretion were stated by the Appeal Panel in Collins at [84] in the following terms:

"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. Moreover, there must be utility in granting leave to appeal: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86].
2. In 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. When confirming, affirming or varying, or making a decision in substitution for, a decision under appeal, s 81(2) provides that the Appeal Panel may 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.

1. The Appellant is representing himself. The Tribunal has taken a benevolent approach to discerning the appeal grounds for appeals by self-represented appellants. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:

"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. Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
2. We approach the identification of the appeal grounds for this appeal with these principles in mind. The necessary starting point is the Notice of Appeal.
3. The Notice of Appeal lists the following appeal grounds:

"The Landlord was & is in breach of the Civil and Administrative Tribunal Act 2013 No 2 s72 (3) by not complying with order 3 dated 23.01.25 (P Gardner) in not providing to the Appellant copies of the documents presented at the hearing on 30.01.25 and constitutes a significant miscarriage of justice.

The Member sought responses from the Landlord to the Appellant's submissions (T2), yet did not seek same from the Appellant indicating the Member was either aware the Appellant had no documents referred to as L1 by the Member, or decided to exclude the Appellant from that procedure thereby denying a fair hearing to the Appellant.

The Member failed to conduct the hearing & procedures in an unbiased manner, and failed to comply with the NCAT Member Codes of Conduct, specifically 11 (5) & 4 (3)."

1. We note that s 72(3) of the NCAT Act mentioned in these grounds provides that a person must not, without reasonable excuse, contravene any order (other than a designated order) of the Tribunal made under the NCAT Act or any other legislation. A contravention of this provision may attract a civil penalty. We also note that s 11(5) and 4(3) of the NCAT Member Code of Conduct (9 July 2020) mentioned in the grounds appear to be references to the following:

(1) The third dot point in paragraph 4 which states that one of the objects of the NCAT Act is ensuring that the decisions of the Tribunal are timely, fair, consistent and of a high quality.

(2) The fifth dot point in paragraph 11 which provides that Members of the Tribunal should be aware of and address appropriately barriers such as language, cultural background, lack of literacy or disability which are likely to impede parties in presenting their case.

1. The remedy sought in the Notice of Appeal is to "[v]acate the orders made on 06.02.25 by [the Tribunal below], or alternatively suspending the date of vacant possession to a time which is fair & reasonable".
2. The Notice of Appeal indicates that the Appellant seeks leave to appeal having regard to the first 2 grounds specified in cl 12(1) of Sch 4 to the NCAT Act:

(1) In relation to the question whether the decision of the Tribunal below was not fair and equitable, the Appellant points to the following:

(a) The Appellant was not served with the documents before the hearing in the Tribunal that the Respondent relied on at the hearing despite an order of the Tribunal made on 23 January 2025, with the consequence that the Appellant and did not have an opportunity to respond to them.

(b) The Tribunal accepted the Respondent's explanation of why he needed vacant possession and false statements made by the Respondent concerning the Appellant's attempts to secure new rental accommodation.

(c) The Tribunal failed to give sufficient weight to the Appellant's disabilities in deciding not to grant an extension of time when requested resulting in a rushed and incomplete response from the Appellant.

(d) The Tribunal accepted into evidence an unsigned letter purporting to be from the Respondent concerning his reasons for seeking vacant possession which was only reluctantly and briefly given to the Appellant at the hearing. The document formed a significant factor in the Tribunal's decision.

(e) The Tribunal failed to accept the various financial, practical and heath obstacles faced by the Appellant in seeking alternative rental accommodation in the preferred area.

(f) The Tribunal was wrong to find that the Respondent was aware of the Appellant's health issues relating to smells from painting, sanding and working within the leased premises

(g) The Tribunal was wrong to find that the Appellant had had ample time to secure alternative rental accommodation.

(2) In relation to the question whether the decision of the Tribunal below was against the weight of evidence, the Appellant says there was a failure by the Tribunal to give proper weight to the matters detailed in his affidavit concerning various financial, practical and heath obstacles faced by the Appellant in seeking alternative rental accommodation.

1. In his written submissions, the Appellant also submitted:

(1) The Tribunal did not require the Appellant to give his evidence at the Tribunal on oath or by affirmation even though the Respondent did so.

(2) The Tribunal made various factual errors.

(3) The appeal clearly raised arguable errors of law concerning whether:

(a) the Appellant had been treated in a fair and reasonable manner with regard to his disabilities under s 49B(1)(b) and (e) of the Anti-Discrimination Act 1977 (NSW); and

(b) the Tribunal had satisfied its requirements under the NCAT Act.

1. The Appellant's oral submissions at the hearing for this appeal differed from his earlier submissions (particularly concerning remedies) because he was no longer in possession of the leased premises. These submissions included:

(1) The Tribunal did not make it clear that the conciliation conference had ended and that the substantive hearing had begun. This was procedurally unfair.

(2) The Tribunal's termination order should be set aside and the Appellant should be allowed to resume his occupancy of the leased premises until he is able to find alternative rental accommodation.

1. We consider that it is reasonable to discern from all this material that the Appellant is seeking to challenge the orders of the Tribunal below on two grounds.
2. The first ground (the procedural fairness ground) concerns whether the Appellant was denied procedural fairness by the Tribunal below because of the following 3 alleged errors:

(1) The Tribunal did not give the Appellant sufficient time to consider or respond to the documents relied on by the Respondent at the hearing before the Tribunal.

(2) The Tribunal did not make it clear to the Appellant that the hearing before it had ceased to be a conciliation conference when the substantive hearing commenced.

(3) The Tribunal did not require the Appellant to give his evidence at the hearing on oath or by affirmation even though the Respondent's agent did so.

1. As we have already mentioned, the question whether there has been a material denial of procedural fairness by the Tribunal raises a question of law and therefore does not require the leave of the Appeal Panel. If the appeal is successful on this this ground, it would follow that both the Tribunal's termination order and its order for possession would be vitiated. The ground also satisfies the requirement imposed by cl 12(2)(b) of Sch 4 to the NCAT Act that an appeal against an order terminating a tenancy made by the Tribunal under the RT Act must be on a question of law if a warrant for possession has been executed in relation to the order.
2. The second ground (the termination suspension ground) concerns whether the Tribunal wrongly exercised its power under s 114 of the RT Act to suspend the Tribunal's order for possession by limiting the suspension to 1 week. The Appellant's complaint about the Tribunal's fact-finding (including the weight the Tribunal gave to the evidence of the Respondent instead of the Appellant) is best understood as complaint about the exercise of this suspension power. This is because the former s 84 (unlike s 114) did not confer a discretion. It required the Tribunal to make a termination order if satisfied that the Respondent's termination notice was given within the period specified by s 84. The Appellant conceded at the hearing for this appeal (and before the Tribunal below) that the Respondent's termination notice was given to him within the requisite period. Whether the Respondent had a good reason for terminating the 2022 tenancy agreement was therefore irrelevant because it was a "no grounds" termination.
3. A finding of the Tribunal at first instance that raises only a question of fact does not by definition raise a question of law. A mixed question of fact and law also does not raise a "pure" question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39]. Similarly, the weight given to evidence does not generally raise a "pure" question of law even if it involves an error of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25](9); Damico at [90].
4. As the termination suspension ground relies on alleged fact-finding errors by the Tribunal, it does not in our view raise any question of law (or, at least, any "pure" question of law). Accordingly, the ground requires leave to appeal.

1. As we have already mentioned, the Respondent did not appear at the hearing for this appeal. Also, the Respondent did not lodge written submissions. Nevertheless, the Respondent's case can be discerned by having regard to each Reply to Appeal that he lodged.
2. The Respondent's case can be summarised as follows:

(1) The Respondent's termination notice was given to the Appellant within the 30-day period specified by the former s 84 of the RT Act. The Tribunal therefore had a duty to make the termination order if satisfied that the notice had been given in accordance with s 84.

(2) The Respondent gave the Appellant sufficient notice of the Respondent's intention not to renew the lease. This dated back to September 2024, which was well before 23 December 2024 when the fixed term for the 2022 tenancy lease ended. However, the Appellant did not properly avail himself of the opportunity afforded by this long period of notice to find alternative rental accommodation.

(3) The Appellant should not be given any further time to vacate the leased premises because of the Respondent's urgent financial need to renovate the premises for the purposes of sale.

1. Since each Reply to Appeal was lodged before the Appellant was evicted from the leased premises, we have no material to discern what the Respondent's views are concerning the impact of the eviction on the determination of this appeal.

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

1. Certain decision-makers, including the Tribunal, are required at common law to afford procedural fairness (also called natural justice) to persons whose interests may be adversely affected by their decisions: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 (Mason J). Procedural fairness is understood to comprise two rules: (1) the hearing rule; and (2) the bias rule: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) at [8.12]. The hearing rule requires a decision-maker both to warn a person of the risk of an adverse decision against them and give the person a reasonable opportunity to be heard before the decision is made: Re Refugee Tribunal at [100]. The bias rule prevents the decision-maker from making a decision if the decision-maker is affected by actual or apprehended bias: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [5]−[6].
2. The NCAT Act recognises the need for the Tribunal to afford procedural fairness (or natural justice) to the parties to proceedings before it. Section 38(2) provides that the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. In addition, s 38(5)(c) provides that the Tribunal is to ensure that parties in proceedings before it have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. We do not understand the Appellant to be contending that the Tribunal below breached the bias rule. The focus of the Appellant's challenge seems to be that the Tribunal breached the hearing rule.
4. As we have mentioned, the procedural fairness ground raises 3 alleged errors by the Tribunal below.

First alleged error: failure to give opportunity to respond to documents

1. The first alleged error that the Appellant claims involved a denial of procedural fairness was that the Tribunal did not give the Appellant sufficient time to consider or respond to the documents relied on by the Respondent at the hearing before the Tribunal.
2. The documents in question are:

(1) a copy of the 2022 tenancy agreement; and

(2) a copy of the Respondent's termination notice; and

(3) an unsigned letter purporting to be from the Respondent concerning his reasons for seeking vacant possession (the Respondent's letter); and

1. There can be little doubt that the Appellant had previously seen the 2022 tenancy agreement and the Respondent's termination notice. They were the gravamen for the proceedings before the Tribunal, including the Appellant's own application. However, the Appellant had not seen the Respondent's letter (which was conceded by the Respondent's agent at the hearing). The Tribunal below gave the Appellant an opportunity to read the letter during the hearing. Moreover, as noted in the reasons given by the Tribunal at [17]−[22], the Appellant was allowed to lodge written submissions and other documents after the hearing. The Appellant was also allowed to file a reply to the written submissions of the Respondent after the hearing in which the Respondent reiterated his submissions at the hearing.
2. We do not consider that the Appellant was denied a reasonable opportunity to consider and make submissions concerning the documents. It follows that the first alleged error does not support a finding that the Appellant was denied procedural fairness.

Second alleged error: failure to inform that the conciliation had ended

1. The second alleged error that the Appellant claims involved a denial of procedural fairness was that the Tribunal did not make it clear to the Appellant that the hearing before it had ceased to be a conciliation conference when the substantive hearing commenced.
2. It is clear from the first sound recording that the parties left the hearing before the Tribunal to participate in a conciliation conference elsewhere. The conference was not conducted by the presiding member. On the return of the parties, the agent for the Respondent indicated that they had been unsuccessful in reaching a settlement. It was at this point that the hearing resumed. The Appellant's assertion that he thought that he was participating in a conciliation conference rather than a substantive hearing is not consistent with what is recorded. This is particularly so given, as we noted earlier, that the second recording records that the Appellant said he had prepared for the substantive hearing when the Tribunal asked the parties to participate in another conciliation conference before proceeding to a contested hearing.
3. It is true that the Tribunal suggested that, if the conciliation conference was unsuccessful, the parties might need to return on another date for the contested hearing. However, we are not persuaded that this is significant, particularly given that the parties were given a further opportunity after the hearing to lodge the documents and submissions to which we have referred.
4. The second alleged error also does not support a finding that the Appellant was denied procedural fairness.

Third alleged error: failure to require Appellant to give sworn evidence

1. The third alleged error that the Appellant claims involved a denial of procedural fairness was that the Tribunal did not require the Appellant to give his evidence at the hearing on oath or by affirmation even though the Respondent's agent did so.
2. The requirement imposed by s 21 of the Evidence Act 1995 (NSW) for a witness to give oral evidence on oath or by affirmation does not apply to the Tribunal. This is because the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (also called procedural fairness): NCAT Act, s 38(2). Accordingly, the Tribunal below was not required to put a party giving evidence on oath: Ibrahim v Taylor [2022] NSWCATAP 308 at [38].
3. In addition, it is an offence against s 71 of the NCAT Act for a person, in any proceedings or application to the Tribunal, to provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect. Although swearing in a witness reinforces in the mind of the witness the need to tell the truth, the duty imposed by s 71 abides even if the witness is not required to give sworn testimony.
4. We note that the Appellant did, in any event, give sworn evidence by means of his affidavit, which the Tribunal below had regard to in making its findings. Also, the Appellant was given an opportunity to make submissions about the Respondent's evidence both during the hearing and in his written submissions in reply after the hearing.
5. Again, the third alleged error does not support a finding that the Appellant was denied procedural fairness.

1. A denial of procedural fairness does not vitiate a decision unless it is "material" in the sense of there being a realistic possibility of a different outcome had procedural fairness been observed: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3]. Even assuming that one or more of the alleged errors mentioned above involved a denial of procedural fairness, we do not consider the denial to be material in relation to the making of the Tribunal's termination order.
2. As we have noted, the Appellant conceded (both before the Tribunal below and in the hearing for this appeal) that he was given the Respondent's termination notice within the period required by the former s 84 of the RT Act. Consequently, the Tribunal below was required to make the termination order. There was therefore no realistic possibility of a different outcome had procedural fairness been observed.

1. As we have mentioned, the termination suspension ground requires leave to appeal from the Appeal Panel.
2. The discretion to grant leave to appeal is not enlivened unless the Appellant can show the following:

(1) The exercise by the Tribunal below of the power conferred by s 114 to suspend the Tribunal's order for suspension was either not fair and equitable or against the weight of evidence.

(2) The Appellant may have suffered a substantial miscarriage of justice because of this in the sense that there was a significant possibility, or a chance which was fairly open, that the Appellant would have achieved a different and more favourable result.

1. In our view, the Appellant's case falls at the first hurdle.
2. Based on the material already discussed, it cannot be said that the decision of the Tribunal below was not fair and equitable. For the reasons we have already given, the Appellant was not denied procedural fairness in putting his case. Although the Appellant was only given a further 2 weeks to find alternative rental accommodation from the date of the Tribunal's order for suspension, this must be understood having regard to the background in which the order was made. The Appellant was advised by the Respondent in September 2024 that his tenancy would not be renewed when its term expired on 23 December 2024. Moreover, by the time the Tribunal made its order on 6 February 2025, the Appellant had continued in possession of the leased premises for more than an additional month despite the expiry of the term of his tenancy, when his request for time was for a month.
3. The Appellant's contention is, in effect, that he should have been permitted to have possession of the leased premises until he found rental accommodation that he considered suitable for his needs. This pays insufficient attention to the terms of the suspension power conferred by s 114. The power requires the Tribunal to undertake a balancing exercise "having regard to the hardship likely to be caused to the landlord and tenant by the suspension". The Tribunal must weigh the hardship likely to be caused to each party, and not just to one party, when exercising the power. We are not satisfied that the 2-week period set by the Tribunal (which was the midpoint between the 4-week period sought by the Appellant and the 1-week period sought by the Respondent) was unfair and inequitable.
4. We are also not satisfied that the Tribunal's decision was against the weight of evidence. The Tribunal expressly had regard to the Appellant's affidavit, which details his personal circumstances. He also had regard to the Respondent's claim that he required vacant possession because of his personal circumstances. The weight of evidence was not preponderantly in any one direction so as to make the Tribunal's decision unreasonable. The decision of the Tribunal had regard to the evidence of both parties and gave each the weight the Tribunal considered appropriate. In this regard, it is important to recall the power conferred on the Tribunal by s 114 of the RT Act is a discretionary power that affords the Tribunal a range of potential choices. If the Tribunal choses to grant a suspension, the length of the period for the suspension is left to the Tribunal to determine. A decision involving a range of potential choices, rather than simply a binary choice, attracts a more deferential standard of appellate review: Damico at [74]-[80].
5. In any event, there would be no utility for the following reasons in granting leave to appeal even if the discretion to grant leave was enlivened.
6. Firstly, the discretion conferred by s 114 of the RT Act can only be exercised if there is an order for possession made by the Tribunal the operation of which is capable of being suspended. The Appellant has been evicted from the leased premises pursuant to a warrant for possession issued because of the Tribunal's order for suspension. Nothing more is required to give effect to the Tribunal's order for possession. It is no longer capable of being suspended.
7. It is true that the Appeal Panel in Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 (Hopkins) at [104]−[136] held that an Appeal Panel has power to reinstate a residential tenancy agreement for premises (and, consequently, the tenant's right to possession of the premises) even when the landlord has taken possession of the premises after the execution of a warrant for possession. However, the factual situation in Hopkins differs from the factual situation in this appeal.
8. Hopkins concerned a termination order made by the Tribunal on the ground that the tenant had breached a term of the residential tenancy agreement. The Appeal Panel held that the Tribunal has wrongfully exercised its power to make a termination order. However, it was possible in Hopkins to reinstate the residential tenancy agreement because the agreement could have continued in force but for the Tribunal's order. As the Appeal Panel noted at [119]:

"Discretionary considerations aside, to assert that the Appeal Panel is thereby creating a 'new' tenancy is incorrect. If the order for termination and possession is set aside, the previous tenancy is revived. If the tenancy is a fixed term tenancy agreement (s 3 of the RT Act) then the fixed term period and rights and obligations of the parties apply. If the tenancy is periodic (s 18 of the RT Act) the rights and obligations of the parties under a periodic agreement apply."

1. The situation in this appeal is different because the term of the 2022 tenancy agreement has ended and there is no dispute that the Tribunal below was bound to make a termination order because the Respondent's termination notice was given to the Appellant in accordance with s 84 of the RT Act. There is therefore no residential tenancy agreement over the leased premises that is capable of reinstatement with the consequence of restoring the Appellant's right to possession of the premises.
2. Secondly, we do not consider that the Tribunal below (or the Appeal Panel in substitution for the Tribunal) could justifiably re-exercise the discretion conferred by s 114 of the RT Act to allow the Appellant to enjoy a longer period of occupancy of the leased premises than the Appellant has already enjoyed.
3. The Appellant originally sought a 4-week suspension of the Tribunal's order for possession of the leased premises. What the Appellant now seeks is, in effect, a suspension for an indeterminate period until he finds rental accommodation that he considers to be suitable for his needs.
4. After the fixed term ended on 23 December 2024, the Appellant continued to occupy the leased premises until he was evicted on 8 May 2025. This is a period of approximately 19 weeks (or 4.5 months), which is much longer than the 4-week period originally sought by the Appellant. Moreover, as we have mentioned, the Respondent advised the Appellant in September 2024 of the Respondent's intention to terminate the agreement. There can be little doubt that the Appellant has been given a substantial period to find alternative rental accommodation.
5. Given the lengthy period the Appellant occupied the leased premises after the end of the term of the 2022 tenancy agreement, we do not consider that the power conferred by s 114(1) could justifiably be exercised afresh so as to allow the Appellant to continue to occupy the leased premises indefinitely. This would pay scant regard to the hardship likely to be caused to the Respondent in circumstances where the Respondent had an entitlement to terminate the 2022 tenancy agreement on a "no grounds" basis.
6. Leave to appeal for the termination suspension ground is therefore refused.

1. We have decided that the procedural fairness ground should be rejected. We have also decided that leave to appeal should be refused for the termination suspension ground. It follows that this appeal must be dismissed.

(1) Leave to appeal is refused to the extent leave is required.

(2) The appeal is dismissed.

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.