Zhen v Yan

1. The application of s 38 (5) of the NCAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
2. It is also the case that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision (s 38 (1)) and that the Tribunal is to act with as little formality as the circumstances of the case permit (s 38 (4)).
3. The appellant's arguments are put at a high level of generality. In major part, his complaint is that the hearing and presentation of submissions did not proceed as efficiently as they might have done. However, there is no legal requirement that the Tribunal member should read all the documentary material to be relied upon before the hearing, nor, as a matter of practicality, must all delays and inefficiencies in the running of a hearing be avoided. Furthermore, the provision of written submissions after a hearing and without any further hearing taking place not infrequently occurs in the Tribunal. It is a convenient procedural step in the use of the resources of a busy Tribunal.
4. Through the combination of the hearing and subsequent written submissions, we can see no failure of the requirement that the appellant be given a reasonable opportunity to be heard. As to the questioning of witnesses, the appellant does not point to any specific denial of an opportunity to ask questions at the hearing that did occur on 27 September 2024.
5. We also fail to see how the appellant has met the low threshold requirement of materiality, namely that as a consequence of some procedural deficiency there was a realistic possibility that the outcome could have been different: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16].
6. Accordingly, we reject Ground 2 of the appeal.

1. In Collins v Urban at [77], the Appeal panel said:

The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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...

1. In his submissions in support of Ground 3 the appellant pointed to Mrs Wang's visa condition and all of the WeChat text messages in the period from 19 to 21 November 2023 as the evidence the Tribunal should have given more weight to. He submitted that this evidence had not been listed in the Tribunal's findings on evidence, which he said was an error of law, and submitted:

These evidences helped to prove that, the intention of the Respondent to terminate the tenant's tenancy (the intention was formed on 22 August 2023 and expressed to the Applicant through We chat message on 22 August 2023), through the subsequent actions taken by the Respondent from 19 November 2023 to 2 January 2024, was turned out to be a retaliatory eviction. Refer Ground 1 The Tribunal erred in the process of applying the law to the facts.

1. We should first mention that we do not accept that the appellant raised here any real question of law. The Tribunal was not obliged to list such evidence. Furthermore, it seems to us that the Tribunal's findings in paragraphs 22, 23, 24 and 34 indicate that the Tribunal did not disregard this evidentiary material.
2. For the reasons we have already outlined in respect of Ground 1, we do not accept that the appellant has established that the evidence in its totality shows that the Tribunal's conclusion was not one that a reasonable Tribunal could reach.
3. Accordingly, we reject Ground 3 of the appeal.

1. In Ground 4 of the appeal the appellant sought to rely upon new evidence said to be not reasonably available at the time of the hearing. Three items of new evidence are put forward.
2. The first item of new evidence is a document titled "Analyse of available estimate living space on the first floor of the house for the Respondent's son's family". The two-page document (with tables) is directed at Mrs Wang's affidavit evidence that she was currently sharing a room on the first floor with her two grandchildren and that "There is a very limited space in the current room I am residing with my grandchildren, as the room downstairs is being occupied by other tenants".
3. The appellant's document sets out "one a possible layout of rooms available on the first floor could be as follow" and also states:

... It is questionable that, with a total estimate available area size of about 65 Square meters, why only three rooms were made? The above analyse (sic) showed that, with a total area size of 65 Square meters, 4 rooms can be made.

Mr Yan does need to provide clear and detailed information (e.g.color floor plan, color pictures for all the rooms, etc), and let the Applicant/Tenant, Mr Zhen, to verify the accuracy and reliability of this information, to enable the Applicant, the Tribunal member, to evaluate and assess his claim that there is narrow living space on the first floor for his son's family.

1. However, the appellant has failed to show why this analysis could not have been available for presentation in the primary proceedings. Furthermore, the document has no probative value, as is clear from its speculative nature.
2. The second item of new evidence is a WeChat message sent from the respondent to the appellant on 12 May 2022 in response to an earlier message sent by the appellant that day. The message from the respondent thanks the appellant for arranging cleaning in the kitchen and the bathroom and it concludes "Pleasure to work with you!".
3. The appellant relies on this material as evidence of the good relationship that once did exist between the parties.
4. However, again, the appellant has failed to show why this material could not have been available for presentation in the primary proceedings. Furthermore, we fail to see how it is "significant evidence" as required by the leave to appeal condition in cl 12 of schedule 4 of the NCAT Act.
5. The third item of new evidence is a report titled "NSW Legislative Assembly Select Committee Enquiry into Residential Tenancies Amendment (prohibiting grounds Evictions) Bill 2024".
6. The document is of no probative value in these proceedings.
7. Accordingly, we reject Ground 4 of the appeal.

1. Appendix J to the respondent's submissions dated 11 October 2024 contained the Tribunal's written reasons issued on 23 May 2024 for making the compensation order. In paragraph 21 of those reasons there is a reference to a message from the respondent to the appellant in the course of an exchange between the parties on or about 31 December 2023 about there being no water and electricity at the premises. In the message the landlord made a disparaging remark about the tenant as explaining the reasons for his actions and stated that the tenant "must move away". We mentioned this reference at the hearing of the appeal.
2. No party sought to rely on this message in the primary proceedings or on appeal (the message itself was not included in the material relied upon by either party in the primary proceedings or on appeal). In the circumstances, we take this matter no further.

1. On 7 April 2024, after the hearing of the appeal, the appellant made an application that the Appeal Panel refer 9 questions to the Supreme Court of New South Wales for the opinion of the Court. The questions were said to be questions of law.
2. Section 54 of the NCAT Act provides:

54 References of questions of law to Supreme Court

(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.

(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.

(3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so.

(4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not -

(a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or

(b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.

(5)Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section.

(1) Question 1: Was the termination intention of the Respondent, as expressed in his WeChat message to the applicant on 22 August 2023... motivated by his emotional need to retaliate against the Applicant for the applicant's defending and enforcement of his rental right protected by the RT Act (Section 41)?

(2) Question 2: Was the termination notice on 22 May 2024, motivated by the Respondent's emotional need to retaliate against the Applicant for the Applicant's defending and enforcement of his rental right protected by the RT Act?

(3) Question 3: Is the Respondent's reason for "Accommodating children's development" genuine?

(4) Question 4: Is the Respondent's reason of "Accommodating daughter-in-law's parents' living" genuine?

(5) Question 5: Should new evidence (new evidence #1 to new evidence #3) be admitted into the Appeal proceeding as evidence?

(6) Question 6: Is it reasonable and feasible for Mrs. Wang to move from upstairs to downstairs and live in the applicant's rented room?

(7) Question 7: In the absence of photographic evidence provided by the Respondent, showing the living space of the first floor (layout, rooms), should the Tribunal/Appeal Panel reject the Respondent's claim that his son's family have a limited living space on the first floor of the house?

(8) Question 8: Should the Tribunal/Appeal Panel declare the termination notice issued on 22 May 2024 is a retaliatory notice?

(9) Question 9: As the second stage of analysis is therefore reached, should the Tribunal/Appeal Panel then exercise its discretion to declare the termination notice of no effect?

1. We refuse the appellant's application for referral of these questions for the following reasons.
2. Firstly, it is clear questions 1,2,3,4,6, and 7 are questions of fact and do not raise any questions of law.
3. Secondly, as appears from our reasons above, question 5 turns on questions of fact. It is also, quintessentially, a decision for the Appeal Panel in dealing with the frequently encountered grounds for leave to appeal on the basis of new evidence.
4. Thirdly, question 8, as also appears from our reasons above, turns on questions of fact.
5. Fifthly, question 9 does not arise on the appeal, nor subsequently, given our rejection of Grounds 1 to 4 of the appeal.
6. Finally, each of the questions for referral, except for question 5, only arise if the Appeal Panel was itself re-determining the merits of the appellant's application for an order under s115 of the RTA or if we had decided that the application needed to be remitted to the Tribunal for redetermination. However, given the conclusions we have reached about the merits of the appeal neither of these courses will be taken.

For the above reasons, we make the following orders:

(1) The appellant's application lodged on 7 April 2025 to refer 9 questions to the Supreme Court of New South Wales for the opinion of the Court 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.