Zhang v Naeini

1. The appellant is the landlord of a property which was leased to the respondents under a residential tenancy agreement made on 19 August 2022. The property leased was a house with gardens and a swimming pool.
2. The landlord alleged that the tenants vacated the house on 6 September 2023 without cleaning or restoring the garden and swimming pool to the condition they were in at the commencement of the tenancy, thus breaching the terms of their lease.
3. The managing agent withheld the rental bond due to the condition of the property.
4. On 22 September 2023, the tenants lodged an application with NCAT (proceedings 2023/00374887). A hearing was held on 26 August 2024 in which evidence was presented by the parties. On 26 August 2024, the Tribunal ordered that:

(1) the bond be refunded to the tenants (after deducting $100 for rubbish removal); and

(2) the tenants reimburse the landlord for water use charges.

1. The landlord filed an application with the Tribunal on 10 November 2024 in (proceedings 2024/00417253) seeking the following orders:

"1. Seeking the order to punish the tenant for provided false evidence and forged documents to Ncat in Case 2023/00374887. 2. Seeking the order to compensate to landlord's expense of $950.00 spent on the case 2023/00374887. 2. Seeking the order to pay total $1,762.50 to the landlord for cleaning garden, swimming pool and the drive way. 4. Seeking the order to pay $800.00 for water usage during they occupied. 5. Seeking to get correct electricity bills from the tenant to calculate how much the granny flat used."

1. On 30 May 2025, there was a further hearing and further orders were made in the 2023/00374887 proceedings as follows:

"1. The Tribunal orders that the respondent Yu Bin Zhang is to pay the applicants Mohommadpouya Alavi Naeini and Katayoun Kashefian Naeini the sum of $3,046.82, on or before 06 June 2025.

Details of the Money order:

1. refund of amounts paid for electricity as the premises were not separately metered to allow a bill for only the part occupied by the tenant from 12/10/20-22 to 12/9/23 $3,046.82."

1. Also on 30 May 2025, in proceedings 2024/00417253 two orders were made. Order 1 was an amendment to the respondents' names. Order 2 was as follows:

"2. The application for remaining issues is dismissed after hearing.

Reasons for decision:

Oral reasons were given."

1. The Appeal Panel was told that the hearing lasted in the order of 1 hour or so.
2. One of the tenants commenced proceedings against the landlord in the Local Court of New South Wales. On 18 June 2025, the Local Court entered judgment for payment by the landlord to the second respondent of $3,159 (being the claimed amount of $3,046.92 plus filing fees).
3. On 23 July 2025, a garnishee order was made by the Local Court for debts against the landlord (Case number 2025/00232252).
4. On 30 July 2025, the appellant filed the Notice to Appeal the subject of this Appeal Panel decision.

1. The appellant filed the Notice of Appeal on 30 July 2025 against the decision of 30 May 2025 in proceedings 2024/00417253:

(1) The Appellant ticked "no" to the question "Do you require an extension of time?". But the appeal was filed outside the prescribed time period of 14 days under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the NCAT Rules").

(2) The grounds of appeal (at Q 5B) said:

"At the hearing the Tribunal Member failed to make any oral statements or explanations regarding the key issues raised in my application and did not consider the material and relevant evidence I submitted. Their conduct demonstrated clear bias and a serious lack of neutrality and procedural fairness."

"That the order made on 30 May 2025 be set aside

That the matter be reheard before a different Tribunal Member.

That the issues raised in the application be addressed and determined."

(4) The appellant also applied for leave to appeal on the basis that the decision was not fair and equitable, and the decision was against the weight of evidence (Notice of Appeal at pp4-5). The appellant said, inter alia:

"1. Refusal to Hear My Application

The Tribunal Member failed to address and determine the substantive issues raised in my application, effectively denying me the opportunity to obtain a fair resolution.

2. Apparent Bias and Lack of Impartiality

The Tribunal Member demonstrated unequal treatment during the proceedings, showing disregard for my submissions and evidence, and failing to maintain the required neutrality and fairness."

1. The appellant filed an application for stay of the orders under appeal on 30 July 2025.
2. On 8 August 2025, at a directions hearing, the appeal was listed for hearing on 3 December 2025 and the following orders (inter alia) were made by the Appeal Panel (our emphasis in italics):

"2. The Appellant is to lodge with the Appeal Registry and give to the Respondent by 26 September 2025:

(a) all the evidence given to the Tribunal at first instance on which it is intended to rely;

(b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;

(c) the Appellant's written submissions in support of the appeal; and

(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."

"7(1) If a party does not lodge with the Appeal Registry and give to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal.

...

8. The Application for a Stay is dismissed. Reason: the stay application was withdrawn and is accordingly dismissed under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)."

1. On 3 and 20 November 2025, the Appeal Panel dismissed applications that had been filed by the second respondent applying for an adjournment of the appeal hearing on the ground of a delayed return flight from an overseas trip due to her father's medical condition.

1. The hearing of this appeal was on 3 December 2025.
2. The appellant was present but was represented by Ms Helen Liu. Ms Liu was assisted by a Mandarin/English language interpreter. The second respondent, Ms Katayoun Kashefian Naeini, represented herself and also her son, the first respondent. Ms Naeini was assisted by a Farsi/English language interpreter. Neither Ms Liu nor Ms Naeini were lawyers.

Appellant's submissions and procedural applications

1. The appellant relied upon the Notice of Appeal filed 30 July 2025, and written submissions and materials filed on 4 August 2025, 17 September 2025 and 17 November 2025. The appellant's written submissions asserted, amongst other things, that the Tribunal member relied exclusively on the respondents' "forged documents", while "disregarding both the appellant's evidence and parts of the respondents' own submissions". The appellant submitted that there was a forged entry condition report relating to the leased property, a failure by the Tribunal member to consider evidence that there was a granny flat fitted with a separate water meter and that there were inconsistencies between the 26 August 2024 orders and the 30 May 2025 orders. The appellant also sought to establish errors in the electricity billing for the leased premises, based on communications from Energy Australia, which was, it appears, the retail electricity provider for the leased property.
2. The Appeal Panel first heard from the appellant's representative, Ms Liu. Ms Liu said that the appellant sought to rely on the documents that the appellant had filed. Ms Liu's oral submissions asserted that the Tribunal Member did not provide an explanation at the hearing of the hearing process and did not consider matters that had been raised by the landlord at the hearing.
3. In the course of Ms Liu's submissions, the Appeal Panel invited submissions about whether leave should be granted to extend the time for the appellant to file the Notice of Appeal. The Appeal Panel also invited submissions about how the Appeal Panel could be satisfied that the appellant's complaints about the Member's conduct of the hearing process on 30 May 2025 and oral reasons were valid complaints, in circumstances where the appellant had not provided the Appeal Panel with a transcript of the Tribunal hearing and a transcript of the Tribunal's oral reasons for decision.
4. In the course of responding to those questions, Ms Liu gave an explanation for why the Notice of Appeal was filed late. She also handed to the Appeal Panel a document, which had not been provided to the respondents before the Appeal Panel hearing, headed "Formal Complaint about Tribunal Member S. Bliim." The Appeal Panel marked the document as MFI 1. The document was three pages in length. It made complaints, amongst other things, that during the hearing the Tribunal Member had relied on "forged evidence" and failed to address "perjury", had failed to review "critical evidence", had "totally failed" to consider the landlord's cross-application in 2024/00417253, that the Tribunal Member had demonstrated "lack of neutrality and appearance of bias" and made "contradictory, arbitrary and unreasoned decisions".
5. The appellant made an application to rely on MFI 1 as evidence before the Appeal Panel. The appellant also made an application to adjourn the Appeal Panel hearing for the purpose of the appellant obtaining a transcript of the hearing on 30 May 2025. The respondents opposed the two applications.
6. The Appeal Panel dismissed both of the applications referred to in the preceding paragraph of these reasons and gave the parties oral reasons for those decisions on the procedural applications at the Appeal Panel hearing.

1. The respondents relied upon submissions and materials filed on 12 September 2025 and 27 October 2025.
2. The respondents submitted that the appellant's appeal is baseless, inconsistent and misleading. In regard to the evidence said to have been ignored, the respondents dispute (and reject) the appellant's evidence regarding separate metering of the granny flat, say the appellant's version of the Entry Condition Report has been fabricated, say (as a new matter) that the appellant breached s 55 of the Residential Tenancies Act 2010 (NSW) ("RT Act"), say they have suffered emotional distress caused by the appellant, and say that it was confirmed at the hearing that Ms Liu was a personal friend of the appellant, supporting their claim that Ms Liu's testimony was biased and unreliable.
3. In their submissions, the respondents requested that the Appeal Panel:

(1) dismiss the appellant's appeal in full;

(2) confirm the Tribunal's orders of 26 August 2024 and 30 May 2025; and

(3) award the respondents' counterclaims totalling $4,659.82.

1. Those counterclaims, which were set out in the respondents' submissions filed in this appeal on 27 October 2025 and accompanying exhibits, were as follows:

(1) Unlawful Entry and Invasion of Privacy $ 500.00

(2) Electricity Refund (Compliance with Tribunal Order) $3,046.82

(3) Emotional Distress and Anxiety $1,000.00

(4) Garnishee Order Cost $ 113.00

1. We note that the orders of 26 August 2024 were made in proceedings 2023/00374887, and that the orders made on 30 May 2025 requiring the appellant to pay the respondents $3,046.82 were also made in those proceedings. At the Appeal Panel hearing, the parties were reminded several times that the subject of the Notice of Appeal that had been filed by the appellant was the orders made in proceedings 2024/00417253 on 30 May 2025.
2. As will be apparent from our reasons set out below, it is not necessary to engage with the respondents' submissions in further detail.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run his or her case again, save for certain narrow exceptions none of which are engaged in the circumstances of this appeal: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") states that an appeal to the Appeal Panel may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds".
3. Where a party is self-represented and that party's material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique Commercial Group Pty Ltd v Cusumano at [27]-[28], Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and Cominos v Di Rico [2016] NSWCATAP 5 at [13].

1. A ground of appeal which demonstrates a denial of procedural fairness in the conduct of a hearing would likely raise a question of law for which no leave to appeal is required. A denial of procedural fairness can also have the consequence that the decision under appeal can be said to be "not fair and equitable": Hutchings v CTTT [2008] NSWSC 717 at [35] and Atkinson v Crowley [2011] NSWCA 194 at [12].
2. Whether the decision under appeal was vitiated by bias or a reasonable apprehension of bias on the part of the decision-maker, such circumstances also would likely raise a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32]. In addition, such circumstances can also have the consequence that the decision under appeal can be said to be "not fair and equitable".
3. See also Boreland v Brewis [2024] NSWCATAP 140 at [59]- [62]; O'Brien v Women's Housing Company Limited [2026] NSWCATAP 3 at [136]- [147], and for the principles regarding apprehended bias, see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, applied by the Appeal Panel in Zonnevylle v Secretary, Department of Communities and Justice [2026] NSWCATAP 1 at [9]- [11], by reference to Ebner, supra, and earlier comments of the Appeal Panel in Jeray v Blue Mountains Council [2025] NSWCATAP 225 at [41]- [45].

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal (and here there is such a decision under appeal), an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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 principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

"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."

1. Even if an appellant establishes that he or she may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. However, under cl 12(2)(b) of Sch 4 of the NCAT Act, notwithstanding s 80(2)(b) of that Act, an internal appeal may only be made on a question of law, and not on any other grounds even with leave, if the appeal is against an order of the Tribunal for the termination of a tenancy under the RT Act and if a warrant of possession has been executed in relation to that order.

1. As a preliminary issue, we must consider whether or not the appellant should be granted an extension of time in which to file the Notice of Appeal. For the following reasons, we have decided to grant an extension of time to 30 July 2025.
2. The Primary Decision was made on 30 May 2025. The Notice of Appeal, which should have been filed within 14 days, was filed on 30 July 2025 and is therefore out of time.
3. Under s 41 of the NCAT Act, the Tribunal has power to "extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation".
4. The principles governing extensions of time are well-established and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In summary, the relevant matters for the Appeal Panel normally to consider in deciding whether or not to grant and extension of time to lodge a notice of appeal may be summarised as follows:
   • the length of the delay
   • the reason for the delay;
   • the extent of any prejudice suffered by the respondent; and
   • the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.
5. Ms Liu informed the Appeal Panel that she had assisted the appellant with the Notice of Appeal and that she had prepared the Notice of Appeal. At the hearing of this appeal, she showed us a draft Notice of Appeal which she emailed to herself on 4 June 2025 - unsigned and in Word form. She told the Appeal Panel that this was the document that had been signed by the appellant and lodged with - and receipted by - Service NSW (rather than the Tribunal) on 6 June 2025 (a copy was located in the appellant's materials). She said that she was told by Service NSW and/or by the NCAT Registry that this document could be filed with Service NSW. We are satisfied that the Notice of Appeal was not filed with the Tribunal on or about 6 June 2025, nor was the required filing fee paid. That was a mistake and accepted by Ms Liu at the hearing to have been so.
6. We are satisfied from the materials before us that there is some evidence in the form of the email correspondence, a draft notice of appeal that had been prepared by Ms Liu on 4 or 5 June which was in similar terms to the Notice of Appeal considered at the hearing before us on 3 December 2025, and a receipt from Service NSW, that there was an attempt by Ms Liu to file a notice of appeal with Service NSW on 6 June 2025.
7. Ms Liu said that she had later followed-up the notice of appeal with the NCAT registry, but that someone in registry told her that no Notice of Appeal had been filed with the Tribunal. It was unclear why no filing fee had been paid. Nor was there any evidence to suggest the respondents had been given a copy of the Notice of Appeal that had been filed with Service NSW.
8. As it transpired a new Notice of Appeal containing the same (or substantially similar) text was prepared (also by Ms Liu), signed by the appellant on 30 July 2025 and was the version on our file stamped as received by NCAT on that day.
9. In those circumstances we are satisfied:

(1) that there was an attempt by Ms Liu on behalf of the appellant to file the Notice of Appeal within the time normally permitted for an appeal to be filed in this type of Appeal;

(2) that the appellant made a genuine mistake in seeking to have the Notice of Appeal filed with Service NSW rather than with the Tribunal;

(3) that with respect to the Notice of Appeal that was later filed with the Tribunal, there was no major delay in the filing of it - there being a relatively short time after the prescribed 14 day period had expired on 13 June 2025; and

(4) that there is, in all the circumstances, a plausible (albeit, and with respect, somewhat odd) explanation from Ms Liu why the Notice of Appeal was not filed within the time normally permitted.

1. We accept that there is some prejudice to the respondents in allowing the extension of time to file the Notice of Appeal, but we note that by their material filed as part of the Appeal Panel proceedings on 27 October 2025 that the respondents themselves were seeking orders for the appellant to make additional payments to them and we do not consider the extent of the prejudice, caused by the delay in filing the Notice of Appeal in the time normally permitted, to be material in the particular circumstances of this case.
2. On that basis, we have come to the conclusion that we should make an order under s 41 of the NCAT Act extending the time for the appellant to file the Notice of Appeal.

1. This appeal is brought by the appellant as an appeal against Order 2 made on 30 May 2025 in proceedings 2024/00417253, which dismissed the appellant's application. We recognise that the written material filed by the appellant as part of the appeal, also makes assertions about the conduct of the hearing on 26 August 2024 in proceedings 2023/00374887 and the orders made on 26 August 2024. Indeed, in their written submissions and oral submission before the Appeal Penal, both parties sought to reagitate facts and orders made relating to the first proceedings, which were not, formally at least, the subject of this appeal. The tenants also sought for the Appeal Panel to make further orders for compensation, against the landlord, arising out of the residential tenancy agreement made on 19 August 2022, as noted above, as well as other orders relating to "compliance with" a Tribunal order and costs of an aspect of the Local Court garnishee proceedings. To the extent these sorts of matters were raised by the parties, they are outside the scope of this appeal given the way the Notice of Appeal was framed by the appellant.
2. In any event, there are a series of other obstacles to the parties making some of the claims they have sought to make in these Appeal Panel proceedings. As for the respondents' "counterclaim" in these proceedings, amongst other things, there are jurisdictional problems confronting that claim arising from the doctrines of res judicata and estoppel, as well as jurisdictional problems associated with seeking to use these Appeal Panel proceedings as a forum to secure "compliance with" an earlier order of the Tribunal or to seek costs of an application in the Local Court of New South Wales.
3. As for the appellant's assertions about the 26 August 2024 hearing, there is no evidence before us about what happened on that occasion beyond the evidence before us about the orders made on 26 August 2024,. There is no explanation for why the appellant did not file a notice of appeal against the 26 August 2024 orders.
4. To the extent that the parties before the Appeal Panel sought to raise issues that were outside the scope of the orders made on 30 May 2025 in proceedings 2024/00417253, we are satisfied that such issues are outside the scope of this appeal and in any event, are lacking in merit. Accordingly, we do not consider the issues that were outside the scope of the orders made on 30 May 2025 in proceedings 2024/00417253 any further.
5. The appellant's grounds of appeal against the orders made on 30 May 2025 in proceedings 2024/00417253 raise allegations that the Tribunal failed to observe procedural fairness and was biased against the appellant. In an appropriate case, such grounds, if established, would be likely to demonstrate an error on a question of law and could also give rise to leave to appeal being granted, as mentioned above in these reasons.
6. However the appellant has not provided the Appeal Panel with a transcript or sound recording of the hearing on 30 May 2025, including the oral reasons given by the Tribunal on that date. The appellant provided the Appeal Panel with no persuasive evidence about how the hearing on 30 May 2025 was conducted. The appellant provided the Appeal Panel with no persuasive evidence about the Tribunal's reasons for reaching its decision on 30 May 2025.
7. An Appeal Panel must know what the Tribunal's reasons for decision were, before the Appeal Panel can determine whether there was some error in those reasons, and involving an error of the type which would permit the appeal to succeed.
8. In the absence of being provided with the sound recording or transcript, we are not able to determine whether the grounds of appeal alleged by the appellant are established - including whether the Tribunal did not afford procedural fairness to the appellant or evinced any actual or apprehended bias, or whether any other error was disclosed.
9. The orders of the Appeal Panel at the directions hearing on 8 August 2025 had made the requirements for provision of these materials clear (see both order 2(d) and note 7(1), which are extracted at [16] and [17] above in these reasons).
10. The approach that the Appeal Panel has previously adopted, in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal, is well-established: see for example, 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]; Liu v Gris [2025] NSWCATAP 122 at [40]- [43].
11. In the absence of evidence about the conduct of the hearing and the reasons in support of the orders made on 30 May 2025, the Appeal Panel must therefore dismiss the appeal.

(1) Extend the time for filing the notice of appeal to 30 July 2025 under s 41 of the _Civil and Administrative Tribunal Act 201_3 (NSW).

(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.