Vlassenko v The Fraternity of the Holy Cross

1. This is an internal appeal filed on 12 June 2025, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 26 May 2025 (Decision).
2. The dispute between the parties arose from a residential tenancy agreement between them and the Decision was made pursuant to the Tribunal's jurisdiction under the Residential Tenancies Act 2010 (NSW) (the RT Act).
3. The appellant is referred to in these reasons as the tenant and the respondent is referred to as the landlord.
4. The materials before the Appeal Panel are:

(1) The tenant's Notice of Appeal lodged on 12 June 2025;

(2) The callover directions dated 25 June 2025;

(3) The tenant's submissions lodged 21 July 2025;

(4) The landlord's Reply to Appeal lodged 24 June 2025;

(5) The landlord's submissions lodged 20 August 2025; and

(6) The application lodged with the Tribunal on 28 February 2025.

1. The tenant's submissions lodged on 21 July 2025 included a typed transcript of the oral reasons given at the hearing (Reasons), which the landlord's representative confirmed was an accurate transcript of the oral reasons given.
2. Neither party has provided a written transcript of the oral evidence and submissions made at the hearing.

1. We summarise the following background from the material before us:

(1) The residential tenancy commenced on 29 August 2019, for a fixed term, to 27 November 2019. Thereafter it continued as a periodic tenancy.

(2) The leased premises are a unit in a village of about 40 units, all owned by the landlord.

(3) The landlord contends that during the course of the tenancy there have been a number of complaints from other residents about the tenant's behaviour.

(4) On about 12 February 2025, the tenant lodged a complaint with the landlord that the lawns were not being properly maintained.

(5) On 20 February 2025, the tenant received a notice of termination from the landlord issued under the then s 85 of the RT Act, which was a 90 day notice, for the end of a periodic tenancy, commonly referred to as a "no grounds notice" (Notice of Termination).

(6) On 28 February 2025, the tenant lodged an application with the Tribunal against the landlord disputing the Notice of Termination, stating that the notice had been issued because the tenant had made a complaint about property maintenance.

(7) The tenant's application was listed for final hearing on 26 May 2025, to determine whether a declaration should be made under s 115 of the RT Act that the Notice of Termination had no effect because it was retaliatory.

(8) Both parties attended the hearing on 26 May 2025 and relied on documents which had been filed and served on the other party. They also gave oral evidence. The Reasons record that the parties also asked each other questions.

(9) The Tribunal delivered the Decision at the end of the hearing with oral reasons. The orders were also published to the parties in writing.

(10) The tenant is still living at the leased premises.

1. An appeal does not provide an appellant with the opportunity to run its case again (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). The Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing".
2. It is not sufficient for an appellant to disagree with the outcome of a Tribunal decision and to contend that there should have been a different outcome: the 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.
3. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. An appeal may be made as of right on any question of law, or with leave of the Appeal Panel, on any other grounds (s 80(2)(b) of the NCAT Act).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. The categories of question of law are not closed.
2. Examples of questions of law include whether there was a failure to deliver adequate reasons, whether the wrong issue was identified by the Tribunal, whether the Tribunal asked itself the wrong question, whether a wrong principle of law was applied, and whether the Tribunal failed to afford procedural fairness to a party.

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because of any of the following reasons:

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

(2) The decision of the Tribunal under appeal was against the weight of evidence; 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.

1. The Appeal Panel considered the meaning of "a substantial miscarriage of justice" for the purposes of Cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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 the appellant satisfies the Appeal Panel that the decision of the Tribunal has satisfied any one of the limbs of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The principles regarding discretion are also set out in Collins v Urban at [84]:

"(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; or

(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; or

(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. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel considered that it may be difficult for self-represented appellants to clearly express their grounds of appeal and at [13] held it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the Tribunals' decision 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. We have followed this principle in this case.

1. From the tenant's written submissions dated 21 July 2025 we understand there to be 6 grounds of appeal as follows:

(1) Ground 1 - The Tribunal misapplied s 115(2) of the RT Act because a notice of termination only needs to be wholly or partly motivated by the tenant exercising a legal right;

(2) Ground 2 - Procedural unfairness as the Tribunal constructed a defence not raised by the landlord;

(3) Ground 3 - Improper reliance by the Tribunal on post termination and historical allegations;

(4) Ground 4 - Selective treatment of evidence by the Tribunal;

(5) Ground 5 - Unreasonableness of the Decision as a whole; and

(6) Ground 6 - Procedural unfairness because the Tribunal failed to provide basic hearing directions and instructions to the tenant.

1. At the hearing, the tenant also sought to rely on 2 additional grounds:

(1) Ground 7 - Failure by the Tribunal to test key evidence; and

(2) Ground 8 - Failure by the Tribunal to ask critical clarifying questions.

1. Clause 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) requires an appeal in relation to a residential tenancy matter to be filed within 14 days of the decision being given to the parties. The Decision is dated 26 May 2025 but the appeal was not filed until 12 June 2025 which we estimate to be out of time by 2 days.
2. The Appeal Panel may extend time for the filing of the appeal pursuant to s 41 of the NCAT Act. The tenant confirmed that he sought leave for an extension of time.
3. Given the fact that the delay was very short at 2 days, the landlord has (in our view) appropriately agreed to the extension by 2 days. Accordingly, we grant leave to extend time to 12 June 2025.

1. In applying the approach suggested by the Appeal Panel in Cominos v Di Rico we consider that Grounds 1, 2, 3 and 6 raise questions of law and Grounds 4, 5, 6, 7 and 8 raise grounds for which leave to appeal is required for a reason under cl 12(1) of Sch 4 of the NCAT Act.
2. Regarding Ground 1, the tenant contends that the Tribunal has misapplied s 115(2) of the RT Act and also applied the incorrect standard of proof (by applying a higher threshold than the balance of probabilities). These 2 matters raise a question of law.
3. Regarding Grounds 2 and 6, the tenant contends there has been a failure to afford procedural fairness, which also raise a question of law.
4. Regarding Grounds 4, 5, 7 and 8 we understand the gravamen of the tenant's submissions to be that the Decision was either not fair and equitable in terms of cl 12(1)(a) of Sch 4 or against the weight of evidence under cl 12(1)(b) or both. As such, as we understand the grounds, the tenant may have suffered a substantial miscarriage of justice, because there was a significant possibility that the Notice of Termination may have been declared to be of no effect under s 115 of the RT Act and the tenant would have been able to continue his tenancy, if the circumstances in either cl 12(1)(a) or cl 12(1)(b) of Sch 4 had not occurred.

1. The tenant contends that the Tribunal misapplied s 115(2) of the RT Act because the Tribunal acknowledged the tenant had made complaints about lawn maintenance on, and prior to, 18 February 2025 and then received a Notice of Termination 2 days later on 20 February 2025.
2. The tenant contends that the Tribunal's finding that there was "insufficient evidence" was a higher evidentiary threshold than the civil standard of proof, being on the balance of probabilities, and therefore the wrong legal standard was applied.
3. The tenant claims that the following sequence of events easily establishes at the civil standard of proof that retaliation was a factor in the landlord's decision to issue the Notice of Termination:

(1) 12 February 2025 - the tenant lodged the first complaint about the lawn maintenance;

(2) 17 February 2025 - the agent reassured the tenant that the lawn would be mowed;

(3) 18 February 2025 - the tenant made a follow up complaint;

(4) 20 February 2025 - the 90 days "no grounds" Notice of Termination was given to the tenant.

1. The tenant submits that given the proximity of the Notice of Termination to the complaint about the lawns, the tenant's complaint was at least a partial motivation for the issue of the notice.
2. The landlord contends that the Notice of Termination was issued due to a pattern of ongoing behavioural issues and community complaints regarding the tenant and not because of any complaint from the tenant regarding the lawns. The landlord relies on documents in its submissions which it contends establish that complaints were regularly being made regarding the tenant's behaviour.
3. The landlord relies on an email dated 10 February 2025, a copy of which is at page 5a of the landlord's submission. It pre-dates the tenant's first complaint on 12 February 2025. The author of that email states:

"I have spoken to Zoran this morning, as per our previous discussions please advise if we are proceeding with a no grounds notice."

1. The landlord argues that this email shows the Notice of Termination was not retaliatory.
2. In reply, the tenant submits that even if there was some consideration about terminating the tenancy before the tenant's first complaint on 12 February 2025, the actual decision to issue the Notice of Termination was not made until after the first complaint was made on 12 February 2025.
3. In the Reasons, the Senior Member acknowledges that the Notice of Termination followed the maintenance request, and they were close in time. However, the Senior Member relied on the legal authority De Bruyne v Ray White Waterford [2020] QCATA 113 at [23] and cited by approval by the Tribunal in McCracken v Carbone [2022] NSWCATCD 107 that in determining a retaliatory eviction a decision maker should be careful to avoid the fallacy that the fact that A precedes B does not necessarily mean that A caused B.
4. We consider that it was open for the Tribunal to in effect conclude that the mere fact the Notice of Termination was issued a few days after the tenant's first complaint did not prove that the landlord was motivated (or even partially motivated) to give the Notice of Termination because of the tenant's complaint.
5. In the second last paragraph, the Senior Member finds:

"I find on the evidence before me that the applicant, using the balance of probabilities civil standard, that the applicant's history of conflict with some and I emphasize some and not all neighbours, was the primary factor in relation to the issuing of the termination notice."

"I find that there is insufficient evidence before the Tribunal to establish that the notice was retaliatory, in part or wholly based on the lawn maintenance request. I therefore dismiss the tenant's application to have the notice of termination declared to have no effect."

1. The Senior Member has clearly made the finding that the Notice of Termination was not motivated even in part by the lawn maintenance issue. The Senior Member has also clearly referenced the applicable standard of proof, being the balance of probabilities. We are satisfied that these findings were open to the Senior Member on the evidence.
2. We reject the tenant's submission that the timeline proves partial retaliation. We consider that the Tribunal has correctly applied s 115(2) of the RT Act and applied the correct standard of proof. It follows that we are not satisfied that there has been any error on a question of law and Ground 1 does not succeed.

1. The tenant contends that the Tribunal introduced speculative reasons to justify the landlord's conduct which were not raised in the submissions and this constituted a failure to afford procedural fairness to the tenant.
2. In the Reasons, the Senior Member made the following finding:

"I find credible reasons why on some occasions the area was not mowed...prioritizing common areas and limitations with weather."

1. The tenant submits he was denied an opportunity to respond to what he calls a "newly constructed justification". The tenant submitted that this "justification" was:

(1) Never argued by the landlord;

(2) Not supported by any evidence such as weather logs or contractor notes;

(3) Factually incorrect as the contractor did not mow the common areas; and

(4) Contradicted by the Bureau of Meteorology data showing no significant rainfall on the relevant mowing days.

1. This is in essence a complaint by the tenant that the Tribunal has erred by introducing matters into its reasoning which the tenant says were not before the Senior Member at the hearing and to which the tenant did not have an opportunity to respond and as such the tenant was denied procedural fairness.
2. The Appeal directions made on 25 June 2025 required the parties to provide as part of their materials for the appeal a copy of the transcript of relevant parts of the hearing if they were relying on what happened at the hearing in the appeal. Neither party has provided a transcript of the hearing. If the tenant sought to rely on what happened at the hearing it was incumbent on the tenant to provide a transcript of what was said and by whom at the hearing.
3. The Appeal Panel is not in a position to know what the evidence and submissions were before the Tribunal and accordingly the Appeal Panel cannot properly assess the tenant's contention that the Tribunal constructed a defence not raised by the landlord. It follows that we are unable to reliably assess whether there was a failure by the Tribunal to afford procedural fairness to the tenant.
4. The Appeal Panel has previously adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance was not supplied on an appeal. In Geracitano v Cloughessy [2021] NSWCATAP 329 at [26]- [27] the Appeal Panel stated:

"[26] We have already commented that [11] of the reasons of the Senior Member are pivotal to an understanding of his reasoning process and the reasons for the Orders which he made. Accordingly, without reference to the report of Mr Rafeletos, the written and oral evidence of Mr Nicholls and the oral evidence and submissions of the parties it is not possible for us to determine whether the Senior Member erred in rejecting the case put forward by the appellants, and in particular whether he was entitled to accept the evidence of Mr Rafeletos, and to conclude that this evidence was supported by the evidence of Mr Nicholls.

[27] It follows that because it is not possible for us to consider these matters, it is not possible for us to consider whether the Orders made by the Senior Member were inconsistent with the evidence or the weight of the evidence and that in some way the Senior Member fell into error when determining to make the Orders which are under appeal."

1. Also, the Appeal Panel in Sengos v Hassan [2022] NSWCATAP 366 at [42] - [43] stated:

"[42] In the absence of the appellant lodging the sound recording or a transcript of the hearing at first instance as directed by the Appeal Panel on 31 August 2022 (see direction 3(d)), we are not able to assess the evidence that was before the Tribunal and whether it was challenged or the subject of competing evidence by the appellant. We cannot therefore conclusively determine whether the Tribunal's findings were not fair and equitable by reason of the contentions now made on the appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]- [26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]- [27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]- [28].

[43] As the Appeal Panel stated in Watson v Chen [2022] NSWCATAP 44 at [27], compliance by the parties with procedural directions made by the Tribunal is "mandatory, not voluntary...". This is reiterated in the NCAT's Guideline 1 "Internal Appeals" at cl 60 that states:

60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon in order to prepare the matter for hearing."

1. The same principle applies in this appeal. Absent the transcript of the hearing it is not possible for us to determine whether the Decision was not fair and equitable or against the weight of evidence or that the Member fell into error when deciding the issues.

1. Ground 3 is a claim that the Tribunal relied on statements of third parties but ignored contemporaneous evidence from the tenant, and also that the Tribunal gave undue weight to historical disputes.
2. Ground 4 is a claim that that the Tribunal gave weight to unsworn statements and gave speculative reasoning while dismissing or ignoring other evidence before it such as the tenant's contemporaneous complaints, a clean national police check, character references and failed to take into consideration clear and numerous contradictions of the landlord's submissions.
3. Ground 5 contends that taken as a whole the Decision was so unreasonable that no properly instructed Tribunal could have made it.
4. Grounds 3, 4 and 5 concern how the Tribunal evaluated the evidence and submissions before it at the hearing. Similarly to Ground 2, absent a transcript of the evidence and submissions made at the hearing, these grounds cannot be properly considered by the Appeal Panel as we do not know the extent of evidence and submissions which were before the Tribunal at the hearing. It follows that the Appeal Panel cannot be satisfied that there was an error on the part of the Tribunal or a basis for leave to appeal, such as the Decision was not fair and equitable or against the weight of evidence.

1. Ground 6 is a contention that the tenant was not given procedural guidance or instructions at the preliminary stage of the proceedings, regarding the structure or conduct of the final hearing.
2. The tenant submitted he prepared for the final hearing unaware that he would have a chance to cross-examine witnesses, unaware of when or how he could object to statements; unaware of whether written submissions should be reiterated orally or assumed read and unaware of what level of questioning or response would be permitted regarding the landlord's evidence. As a result, the tenant says he was materially disadvantaged and deprived of a fair and equal opportunity to prosecute his case.
3. The tenant said the Senior Member gave a short explanation as to how the hearing would be conducted, but the tenant contends that it was at the preliminary hearing stage that he was not advised he could ask questions of the other party. For a tenancy matter in the Consumer and Commercial Division this first hearing is usually a group list and conciliation listing. The tenant contends that this failure to explain the procedures deprived him of the opportunity to fully prepare for the final hearing. He submitted that if he had known, he would have prepared a long list of questions for the landlord or representative. The tenant read to us a list of questions he would have asked the landlord or its representative.
4. To the extent that this complaint is in relation to the group list hearing (at which directions were made to prepare the Tribunal proceedings for final hearing), this is not an appeal from those orders and as such we cannot consider the contention. Further we note that there is information on the Tribunal's website as to how to prepare for a hearing, which the tenant could have researched.
5. To the extent that this ground is in relation to any explanation of the hearing process by the Senior Member at the hearing on 26 May 2025, the complaint lacks specificity and in any event the tenant says the Senior Member did provide an explanation. Also, absent the transcript we are unable to assess what the Senior Member may have said to the parties by way of explanation of the hearing process.
6. Accordingly, the Appeal Panel cannot be satisfied of the merits of this ground and whether there was any error or ground for leave to appeal.

1. Grounds 7 and 8 relate to the tenant's contentions that the Senior Member asked very few questions during the hearing and failed to clarify central issues which left the credibility of witnesses untested. Once again, without the benefit of a transcript the Appeal Panel is unable to assess this ground of appeal and whether there was any error on the part of the Senior Member as contended or any ground for leave to appeal.

1. The Appeal Panel is not satisfied on the material before it that there has been an error on a question of law or that leave to appeal should be considered for any reason set out in cl 12(1) of Sch 4.
2. We make the following orders:

(1) Leave granted to extend the time for filing the appeal to 12 June 2025.

(2) Leave to appeal dismissed.

(3) Appeal 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.