Webb v Shardana Pty Ltd

Bentran v Sabbarton [2014] NSWCATAP 37

Boreland v Brewis [2024] NSWCATAP 140

Canterbury-Bankstown Council v Cossu [2025] NSWSC 717

Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Chatterjee v Pandya [2024] NSWCATAP 85

Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94

Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465

Hudson v Arap 1 (NSW) Pty Ltd (2015) 90 NSWLR 477; [2015] NSWCA 126

Kalifair Pty Ltd v Digetic (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

Kearney v Amirbeaggi (No 3) [2025] NSWCA 234

Lawrence v Gunner [2015] NSWSC 944

Lawrence v Gunner (No 2) [2015] NSWCA 395

McKerlie v Leeser [2023] NSWCATAP 112

McMahon v Gould (1982) 7 ACLR 202

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 6

Qasim v PF 473 Pty Ltd [2024] NSWCA 248

Rayner v Rayner [2020] NSWSC 1536

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;(2003)195 ALR 502; [2003] HCA 6

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

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners Strata Plan No 64807 [2023] NSWCA 188

1. This is an application for a Stay of orders for termination and possession in a dispute under the Residential Tenancies Act 2010 (NSW) (RT Act) that is the subject of an internal appeal to the Appeal Panel under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. In a residential tenancy matter, the Tribunal, rather than a Court, has the power to terminate a residential tenancy agreement (s 119 RT Act; Lawrence v Gunner [2015] NSWSC 944; Lawrence v Gunner (No 2) [2015] NSWCA 395).
3. In these reasons, any reference to "the tenant" is a reference to the appellant, and any reference to "the landlord" is a reference to the respondent.

1. On 19 June 2025, the landlord (represented by a licenced real estate agent) commenced proceedings in the Consumer and Commercial Division of the Tribunal in Case Number 2025/00234564. The orders sought were "89(5)-termination due to non-payment of rent; s 187(1)(i)-vacant possession order; s 187(1)(c) payment of all unpaid rent".
2. The tenant also commenced proceedings in the Tribunal in Case Number 2025/00229002 seeking the landlord's Notice to Terminate be set aside on the basis that it was retaliatory under s 115 of the RT Act.
3. On 18 July 2025, the Tribunal set both sets of proceedings down for a special fixture hearing, with procedural directions regarding the filing and serving of documentary evidence.
4. The contested hearing occurred at the Tribunal on 25 September 2025 before General Member Redmond. The landlord was represented by its agent Ms Kearines. The tenant appeared at the hearing by telephone. The written reasons of Member Redmond note that the landlord relied upon documentary evidence filed on 25 July 2025 and that the tenant did not provide any documentary evidence.
5. On 25 September 2025, the Tribunal heard the proceedings and made orders. Written reasons were given. The tenant's claim that the proceedings were retaliatory was dismissed, in circumstances where the landlord has issued the Notice to Terminate on the basis of the tenant's significant and ongoing default in respect of failing to pay rent.
6. The Tribunal made orders terminating the tenancy, with the date of vacant possession suspended to 9 October 2025.
7. The Tribunal's written reasons are detailed. In respect of the application by the landlord to terminate, the Tribunal found that (a) there was a residential tenancy agreement between the parties; (b) the rent arrears, as at the date of the Tribunal hearing, were $28,085.71; (c) the Notice to Terminate complied with the applicable provisions of the RT Act and had been validly served; (d) the proceedings had been validly commenced in the Tribunal under the RT Act; (e) the tenant had frequently failed to pay rent (s 89(5) of the RT Act) and the breach was sufficiently serious in all the circumstances to justify termination of the tenancy.
8. The written reasons of the Tribunal referred to a number of issues. The Tribunal stated at [9] that:

"The tenant kept telling the Tribunal that he wanted a stay because there are (or were) Supreme Court proceedings before McGrath J, and an ICAC investigation. Indeed, the tenant kept saying he could not give evidence because it would jeopardize his right against self-incrimination. The tenant kept pressing this point to which the Tribunal found it hard to reconcile as this hearing concerned an application for termination and vacant possession for non-payment of rent. The tenant also suggested that he was denied procedural fairness. The tenant kept stating that the Tribunal had already formed an opinion and he would appeal. That is his right."

1. At paragraph [14], the Tribunal found that the tenant's application under s 115 of the RT Act had "no merit (and no evidence)" because the Notice to Terminate was issued in circumstances where the tenant was in serious breach of the obligation to pay rent. That paragraph of the reasons also refers to an "alternative" submission by the tenant that he be given 90 days to vacate the property. The Tribunal granted a much shorter suspension of the date of vacant possession, for reasons that included the large amount of rent arrears.
2. At paragraph [14], there is also reference to the bond amount being "exhausted". Both parties accept that no bond was paid for the premises. The landlord was not seeking any order for the bond, because no bond had been paid by the tenant at the commencement of the tenancy.
3. In the appeal Stay application, the tenant asserts that a number of his grounds of appeal are based on the Tribunal referring to the bond in paragraph [14] where no bond was paid.
4. When the Tribunal issued the orders on 25 September 2025, the orders included an order that the tenant pay the landlord $28,085.71. That order was clearly inconsistent with the reasons at paragraph [10] of the decision, which state:

"The Tribunal is satisfied on the final state of the landlord's evidence (their rent record) that as of the date of the hearing, the tenant owes rent of $28,085.71 in arrears, a not insignificant sum. The Tribunal explained to the landlord its jurisdictional limit, which the landlord acknowledged and stated that it would pursue the debt in the Local Court of NSW as a liquidated claim."

1. The "jurisdictional limit" the Tribunal was referring to in paragraph 10 of its reasons is $15,000 (Regulation 40(b) of the Residential Tenancies Regulation 2019 (NSW); Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465).
2. However the Tribunal corrected that error on 26 September 2025 by setting aside the money order for payment of $28,085.71 and reissuing amended orders (with the same reasons) under s 63 of the NCAT Act. Section 63 of the NCAT Act is the equivalent of the "slip rule:" under Reg 36.17 of the Uniform Civil Procedure Rules 2005 (NSW): Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners Strata Plan No 64807 [2023] NSWCA 188 (Sunaust)).
3. On 10 October 2025, the tenant filed a Notice of Appeal and Application for a Stay.
4. The tenant identified 28 grounds upon which there was an error of law or leave to appeal should be granted. It is unnecessary to set out each of the grounds, and sufficient to identify them in substance. The tenant identifies his grounds of appeal as follows:

(1) Denial of procedural fairness, because the Tribunal "discouraged him" from giving documents and evidence "due to concurrent criminal law exposure (ICAC "Operation Mantis" and related Supreme Court matters) while "refusing to adjourn or stay to avoid prejudice." The Tribunal also "forced" the tenant to choose between "defending the civil claim and preserving privilege."

(2) The Tribunal "deprived" the tenant of a "real opportunity to present his case and materially affected the outcome."

(3) The Tribunal "granted relief not sought" in circumstances where "the landlord had not sought monetary compensation as a discrete head of relief." Granting relief not sought is a "legal error."

(4) The Tribunal should not have made a money order and could not delete the order under s 63 of the NCAT Act as it was "beyond" the power under s 63.

(5) The Members reasons are "infected by legal error."

(6) The Members reasons, after amendment under s 63 of the NCAT Act, still refer to the bond.

(7) The Member had a "pre-conceived view" that a money order was justified, even though it was not sought by the landlord.

(8) The Member's reference to the bond being "exhausted" despite there being no bond sought was "factually wrong," "reinforces that this was not a standard landlord-tenant relationship" and "infected the exercises of discretion."

(9) The tenancy was not a "simple tenancy" but there had been "prior consent orders recording a contract of sale with arrears to be adjusted on settlement; Supreme Court freezing orders preventing settlement and ICAT Operation Mantis context and related Supreme Court proceedings."

(10) The Tribunal's finding that the tenant had frequently failed to pay rent "misconceived the operative arrangement, the arrears were contractually anchored to settlement (and the settlement was later blocked by Supreme Court freezing orders).

1. The Notice of Appeal attached a copy of the decision of McGrath J in Canterbury-Bankstown Council v Cossu [2025] NSWSC 717 (Cossu) . No other documents were attached to the Notice of Appeal.
2. The Stay Application filed on 10 October 2025 contained a statement of the tenant Mr Webb dated 10 October 2025. That statement asserted that the settlement of the contract of sale for the tenant to purchase the property from the landlord was frozen by Supreme Court orders. The statement asserts that the tenant raised at the Tribunal hearing "privilege against self-incrimination" due to "ICAC Operation Mantis and related Supreme Court matters." It was asserted that the Supreme Court had granted a Stay of proceedings in Cossu to "protect the right to silence pending potential charges."
3. On 13 October 2025 (corrected under s 63 of the NCAT Act on 14 October 2025) Blake PM of the Appeal Panel made procedural directions setting the appeal down for a Call Over on 24 October 2025; and the Stay application down for hearing on the same date. The procedural directions included a timetable for the parties to file and serve documents and submissions in the Stay application.
4. On 20 October 2025, the tenant filed documents and submissions in the Stay application. The Stay submissions asserted that there was a serious issue to be tried in the appeal on 4 basis set out at paras [7]-[10]. It was submitted that if the Stay was not granted the appeal would be nugatory. It was submitted that the balance of convenience was in favour of granting the Stay, because the tenant would pay the occupation fee of $114.29 as a condition of granting the Stay; and there would be "irreparable prejudice" to the tenant if the Stay was refused. No offer was made by the tenant to pay any amount of rent arrears to the landlord. The tenant's Stay application submissions referred to the principles of granting a Stay of proceedings in McMahon v Gould (1982) 7 ACLR 202.
5. The documents of the tenant contained the orders made by Member Redmond and the decision in Cossu. No contract for a sale of the property was provided in the tenant's documents; nor a copy of the orders of the Tribunal consent orders referred to by the tenant where it was asserted the landlord agreed to deduct rent arrears from settlement of the purchase price of the residential premises when it was sold to the tenant. No copy or summary of the ICAC Operation Mantis report was provided, or evidence of any relationship between Shardana Pty Ltd and any of the persons involved in ICAC Operation Mantis.
6. The landlord, by its licensed agent, filed documents and submissions in the Stay application on 23 October 2025. At the hearing of the Stay application, the tenant stated he had received the documents. The documents included (a) managing agency agreement; (b) written residential tenancy agreement between Mr Webb and Shardana Pty Ltd for a 1 year fixed term period commencing 19 February 2024. The rent payable was $850 per week commencing 19 February 2024. Mr Pietero Cossu is referred to as the person of the landlord to contact in respect of urgent repairs; (c) Notices to Terminate for non-payment of rent dated 25 October 2024 and 16 June 2025; (d) consent orders of the Tribunal dated 6 December 2024 (Member Ng); (e) the orders of the Tribunal made by Member Redmond in September 2025; (f) a rent leger.
7. In respect of the documents of the landlord, the consent orders of Member Ng dated 6 December 2024 (which refer to payment of rent arrears) contain the following notation:

"Note" The Tenant and the Landlord have entered into a Contract for Sale to purchase the rental property, and agree that any rent arrears at the time of settlement will be adjusted into the final purchase price."

1. The rent leger shows that there were rent payments made between 5 March 2024 and 12 July 2024, although there were rent arrears, which at that stage were $2,307.14. There were then no payments until 16 December 2024. By that stage, the rent arrears were $18,457.14. There were payments, on various dates and amounts, between 6 December 2024 and 19 May 2025. As of 19 May 2025, the rent arrears were $13,421.43. No payments had been made since 19 May 2025. The rent arrears as of 23 October 2025 were $31,485.71.
2. On 24 October 2025, the Appeal Panel made procedural directions setting the appeal down for hearing. The appeal is listed for hearing on 3 February 2025. The Stay application hearing then proceeded, in the context of a busy list with a number of matters listed throughout the day. However, both parties stated that they were ready to proceed in respect of the Stay application, and neither party sought an adjournment for any reason. The tenant appeared (by Audio-Visual Link) and the respondent was represented by Ms Kearines, licensed agent.
3. The tenant made oral submission that were broadly consistent with his written submissions and documents.
4. The landlord's agent stated that the landlord had obtained a warrant for possession, and had contacted the office of the Sherriff, but a date of enforcement of the warrant was not yet scheduled by the office of the Sherriff. The landlord opposed the Stay, on the basis that the tenant did not have arguable grounds of appeal; the appeal was filed to delay execution of the order; the rent arrears were currently over $30,000 and the non-payment of rent was a matter of financial hardship.

1. The Appeal Panel has the power to grant a Stay of orders pending determination of an internal appeal under s 43 of the NCAT Act.
2. The principles in respect of the granting of a Stay are well-established: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103; Beck v Colonial Staff Super Pty Ltd (No 2) [2015] NSWSC 1360; Bentran v Sabbarton [2014] NSWCATAP 37; Kalifair Pty Ltd v Digetic (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383; Qasim v PF 473 Pty Ltd [2024] NSWCA 248 (Qasim); Kearney v Amirbeaggi (No 3) [2025] NSWCA 234 (Kearney)
3. A Stay does not overturn the orders, but suspends their operation until the appeal is heard, and conditions may be imposed. The filing of an appeal does not automatically entitle a party to a Stay, and it is the appellant who must satisfy the Appeal Panel a Stay should be granted because it is in the interests of justice to grant the Stay. Special or exceptional circumstances are not required. The overriding principle is what the interests of justice require.
4. There are three key principles. Firstly, the appellant must establish they have an arguable appeal. The Appeal Panel does not engage in a detailed analysis of whether the appeal is likely to succeed, but it must be satisfied that there are arguable grounds identified, such that the appeal has substance beyond being filed simply in the hope of gaining respite against immediate execution of a decision or to delay execution of decision. Secondly, the Appeal Panel must be satisfied that refusing to grant a Stay will cause a real risk of prejudice or damage which will not be redressed by a successful appeal. If the Appeal Panel is satisfied of these two criteria, it then moves into considering the balance of convenience. The balance of convenience involves weighing up the effects of the respective parties if a Stay is granted, compared to a Stay not being granted.
5. Are There Arguable Grounds of Appeal?
6. In Qasim, Gleeson JA stated at [10]:

"It is well-established that the Court will not generally speculate upon the appellant's prospects of success but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospects of success simply to gain time:Kalifair Pty Ltd v Digi-Tech (Australia) Ltd at [18] -[19]. Given that the parties diverged as to whether the appeal raises arguable grounds, it is necessary to undertake such a preliminary assessment on this application."

"In Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] Payne JA explained that the principles governing the granting of a stay pending appeal are analogous to those governing the grant of interlocutory relief before trial. A party applying for a stay must show that the appeal raises serious issues for determination and that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If those matters are established, it becomes necessary to consider the balance of convenience and the competing rights of the parties. The absence of arguable grounds of appeal is likely to be determinative against a stay application: see Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 at [5]".

1. An internal appeal is not simply a rehearing of the original application. An error on a question of law; or grounds for leave to appeal must exist (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39). A self-represented litigant should be given some latitude with the manner in which grounds are set out, such that the focus is on the substance of the grounds raised (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69).
2. The Appeal Panel deals with the grounds identified by the tenant, and whether they are arguable, as follows:

1. The tenant, in the Notice of Appeal, referred to there being a contract for sale of the property. Under s 8(1)(f) of the RT Act, the Act does not apply to an agreement for sale of land that confers a right to occupy residential premises. However, that provision only applies if the contract for sale of land confers a right to occupy residential premises on a party to the agreement as a term of the contract for sale, not where the right to is conferred by a separate agreement; or where the contract for sale purports to confer a right to occupy on a third party or whether the agreement is merely a precondition to sale rather than a term of the contract for sale (Hudson v Arap 1 (NSW) Pty Ltd (2015) 90 NSWLR 477; [2015] NSWCA 126).
2. In this matter, no contract for sale of land was provided by the appellant. The landlord's agent submitted that there was a contract, but it was never signed. Even if the tenant's submission regarding ICAC "freezing" the sale is accepted, there is nothing to demonstrate that there was not a residential tenancy agreement between the parties and that the Tribunal had did not have jurisdiction under the RT Act.

The Landlord Not Claiming Rent Arrears In The Application

1. That submission is factually incorrect. The landlord did seek a money order for rent arrears in the application filed with the Tribunal. The landlord could have submitted to the monetary jurisdiction of the Tribunal if it chose to do so, but it is clear from the reasons it did not press for a money order for rent arrears because it would take action in the Local Court to recover the money.
2. The landlord also clearly sought a finding under s 89(5) of the RT Act that the tenant had frequently failed to pay rent. There was ample evidence in the rent ledger of the landlord that the tenant had frequently failed to pay rent.

1. The Tribunal making an order under s 187(1)(c) or the RT Act regarding payment of money is a different order making power to the power to make orders for termination and possession (s 187(1)(i) of the RT Act).
2. The Tribunal made an order in error that the rent arrears be paid as an order of the Tribunal. As discussed previously, that order is inconsistent with what is set out in paragraph [10] of the reasons, whether the monetary jurisdiction of the Tribunal was raised. The Tribunal corrected its error, and did so expeditiously. Considering the inconsistency with the order and the reasons, the Tribunal had the power to do so under s 63 of the NCAT Act within the Sunaust principles. Even if it did not have the power to set aside the order under s 63 of the NCAT Act, it had a power to do so under s 188 of the RT Act.
3. The tenant asserts that the order for payment of rent arrears "infects" the other orders. However, the orders for termination, possession and payment of an occupation fee are not dependent on whether or not a money order is made for payment of rent arrears. A tenancy is terminated for non-payment of rent on the basis of factual findings, including a factual finding that the tenant was more than 14 days in rent arrears when the Notice to Terminate was issued and served. The Tribunal found that the tenant was significantly in rent arrears, and there is no evidence to suggest that the information contained in the rent ledger of the agent for the landlord is incorrect.
4. The tenant's criticism that the Tribunal had used the word "entitled" in respect of the arrears also does not demonstrate any arguable error on a question of law or grounds to grant leave to appeal.

1. Both parties accept that no bond was paid. The brief reference in the reasons to the rent arrears exceeding the bond appear to have arisen by reason of the Member assuming a 4 week bond had been paid. However, the non-payment of a bond makes no difference to the factual findings that (a) there was a residential tenancy agreement; (b) the Notice to Terminate was validly issued; and (c) the tenant was approximately $28,000 in rent arrears as at the date of the Tribunal hearing. No arguable error on a question of law or grounds to grant leave to appeal are identified by reason of the reference to a "bond" in the reasons.

The Issue of Self-Incrimination and Stay of Termination Proceedings Sought By the Tenant

1. The substance of this ground is that the Tribunal should have granted a Stay of proceeding (or otherwise adjourned generally) the landlord's termination and possession application until the issue of whether any criminal proceedings were brought against the tenant were determined, or otherwise that hearing the proceedings infringed the tenant's right not to give evidence in the Tribunal proceedings that may incriminate himself in respect of a criminal investigation or criminal proceedings.
2. The tenant submits that the principles in Cossu are applicable, and the Member should have Stayed the landlord's application for termination and possession.
3. Cossu involved an application by Canterbury-Bankstown Council for declaratory and other relief arising from alleged misappropriation of monies and assets by Mr Cossu and various other defendants. The tenant was not a party to those proceedings, although Ivan Webb was party. Shardana Pty Ltd was also not a party to those proceedings.
4. McGrath J referred to the Operation Mantis investigation and report of ICAC at paragraphs [7]-[13] of the reasons. ICAC had referred to the ODPP that the ODPP consider various potential criminal charges, including that Mr Cossu had corruptly given financial benefits to the tenant in the tenant's (then) capacity as a senior employee of the Council.
5. The orders sought by the Council in the Supreme Court proceedings are set out at paragraphs [31]-[42], including declarations; tracing orders; account of profits; and other relief.
6. At paragraphs [45]-[54], McGrath J sets out the submissions of the parties as to why a Stay of the Council's proceedings should be granted. Mr Cossu gave detailed submissions as to how the Council's proceedings against himself could affect his right to silence in any criminal investigation and prejudice any defence of criminal proceedings brought by the ODPP.
7. At paragraph [43] of the decision, McGrath J set out the principles for whether a Stay of civil proceedings should be granted pending potential criminal proceedings. Included in those principles are (at [43](7)) that to warrant a Stay of civil proceedings, it must be apparent that the accused is at risk of prejudice in the conduct of his or her defence in criminal proceedings if the Stay is not granted.
8. At paragraph [56], McGrath J stated that the Council's claims in the civil proceedings against Mr Cossu and the other defendants (which did not include the tenant in these proceedings) arose from the same serious allegations that were the subject of the referral to the ODPP by ICAC. That was an important consideration in favour of granting the Stay of the civil proceedings (see [56]-[58]) McGrath J granted the Stay, but on certain conditions.
9. In this matter, there is a residential tenancy dispute between Mr Webb and Shardana Pty Ltd. The tenant, Mr Webb, does not articulate, even in broad terms, how granting a Stay of the residential tenancy proceedings affects any ability of him to give evidence as to why he had not paid rent to Shardana Pty Ltd, or any other matter that may be relevant to termination of a residential tenancy agreement such that there is a risk his right against self-incrimination would be affected. In Cossu, it was explained clearly to McGrath J how defending the civil proceedings brought by the Council may infringe the right against self-incrimination.
10. Mr Webb did not provide in the Stay application any sound recording or transcript of the proceedings before Member Redmond. However, he broadly asserted what occurred; and the Member's reasons refer to him raising the issue of self-incrimination.
11. The Tribunal is not satisfied that Mr Webb asserting before the Member (and in the Stay application to the appeal) merely that there was some relationship between Operation Mantis and the residential tenancy agreement is arguably sufficient that the Member committed an error on a question of law, or otherwise leave to appeal should be granted, because the Member did not Stay or adjourn the landlord's application for termination and possession.
12. The tenant referred to the decision of Wootten J in McMahon v Gould (1982) 7 ACLR 202 in support of his assertion that the Member erred by not granting a Stay of the landlord's application for termination and possession. In that matter (which involved a claim by a liquidator for recovery of monies that were the subject of criminal proceedings against Mr Gould for conspiracy and fraud) Wootten J refused to grant a Stay of proceedings. The principles for granting a Stay of proceedings are referred to in the decision (at 206-207).
13. However, those principles were also discussed in Cossu, and the principles do not require repetition. The tenant has failed to identify how the refusal to adjourn or Stay the landlord's termination application affected his ability to give evidence in the Tribunal proceedings on the issues relevant to termination of a residential tenancy agreement for failure to pay rent; or potentially affects his right to silence in any criminal investigation or future criminal proceedings arising from Operation Mantis.

1. The tenant' submissions contained broad assertions that the manner in which the hearing was conducted constituted a denial of procedural fairness. However, merely referring to procedural fairness is not sufficient to demonstrate an arguable appeal. The tenant has failed to identify any arguable matter that the way in which the hearing was conducted caused him any practical injustice or otherwise was inconsistent with s 38 of the NCAT Act (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; (2003) 195 ALR 502; [2003] HCA 6 at [37] Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [20]; Ah Sam v Mortimer [2021] NSWCA 327 at [22]; Italiano v Carbone &Ors [2005] NSWCA 177 at [88]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [80] Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 at [14]; Boreland v Brewis [2024] NSWCATAP 140 at [59]- [64]).
2. The only matters of practical injustice that the tenant refers to in substance is the refusal to grant a Stay of proceedings; or that he was "dissuaded" from giving evidence. However, as discussed previously, there is nothing put forward by the tenant to explain how he was "dissuaded" or how that affected any evidence he may give other than the issue of the right to self-incrimination, which has been discussed previously.

1. The tenant submitted "this is not a usual tenancy agreement." However there was nothing to indicate the tenant had any arguable legal interest in the premises beyond the existence of the residential tenancy agreement. A mere assertion of an equitable interest does not demonstrate an error on a question of law or that leave to appeal should be granted (Rayner v Rayner [2020] NSWSC 1536).
2. In respect of the dismissal of the tenant's claim that the Notice to Terminate was retaliatory, the relevant principles are set out in decisions including Chatterjee v Pandya [2024] NSWCATAP 85 and McKerlie v Leeser [2023] NSWCATAP 112. The Notice to Terminate was issued by reason of the breach of the tenant by failing to pay rent, and there are no arguable grounds identified as to why the decision that the Notice was not retaliatory within s 115 of the RT Act contains an error on a question of law or leave to appeal should be granted.
3. The tenant refers to the consent orders of the Tribunal dated 6 December 2024. However, contrary to the submission of the tenant, the notation (which is not an order) noted the parties had entered into a contract of sale and agree that any rental arrears at the time of settlement would be adjusted into the purchase price. Assessed objectively, that is not an agreement that the tenant did not have to pay rent in accordance with the terms of the residential tenancy agreement. Simply, it notes that if settlement did occur, any arrears at that time would be adjusted into the purchase price.
4. The tenant also referred vaguely to the Tribunal Member having a predetermined view. However, there is nothing to indicate that the tenant has an arguable ground of appeal based on apprehended bias; or actual bias, or any other inappropriate intervention by the Member
5. The Appeal Panel is not satisfied that arguable grounds of appeal are demonstrated.

Would There Be Harm or Prejudice to the Tenant If The Stay Was Not Granted That Would Not Be Repaired By a Successful Appeal?

1. The Appeal Panel is satisfied that if the Stay is refused and the landlord executes the warrant and takes possession that the appeal will be rendered nugatory or futile because a successful appeal will not likely restore the tenancy. However, that, of itself, is not sufficient to grant a Stay.

1. The Appeal Panel is not satisfied the balance of convenience is in favour of granting a Stay. The only condition the tenant has put forward is to pay an occupation fee. However, as the landlord's agent pointed out, there is no evidence to indicate this condition would likely be complied with, in circumstances where the tenant has not made any payments to the landlord since May 2025. Further, the tenant did not offer to pay back any amount of the rent arrears. The arrears are clearly significant.
2. The tenant also did not provide any evidence of hardship or other matters to consider regarding the balance of convenience. No evidence was provided as to who is living in the residential premises; or that the tenant (or any other occupant) has any particular medical, disability or hardship issues that would cause homelessness if the landlord executed the warrant. There is no evidence the tenant, or any other person, could not obtain alternative accommodation, including rental accommodation.

1. The tenant has failed to establish the necessary grounds to grant a Stay.

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.