Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253 Hearing dates: 9 May 2023 Date of orders: 05 September 2023 Decision date: 05 September 2023 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member G Burton SC, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed except for varying order 2 made on 14 March 2023 in proceedings RT 23/03534 so that the date upon which possession is to be given is 28 days after the date of these orders. 3. Note that the stay order made by consent on 29 March 2023 is lifted by virtue of these orders on the date of these orders. Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Appellant claiming interest in property by virtue of special conditions in tenancy agreement and/or "concurrent agreement" – Claimed interest in property did not prevent termination of tenancy ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Procedural fairness – Proceedings listed for directions but Tribunal made orders determining the matter – No denial of procedural fairness where appellant was legally represented and its representative made no protest when the Tribunal indicated it proposed to determine the matter – Submissions filed by the appellant in accordance with directions had identified no legitimate basis of opposition to the orders sought Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) ss 83, 119 Cases Cited: Bale v Mills [2011] NSWCA 226 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Collins v Urban [2014] NSWCATAP 17 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3 Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2021] HCA 17 Nathanson v Minister for Home Affairs [2022] HCA 26 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Waters v Chai [2016] NSWCATAP 248 Texts Cited: None Cited Category: Principal judgment Parties: Jerry Robert Gordon (appellant) Glowberth Pty Ltd (respondent) Representation: Counsel: J Loxton (appellant) Solicitors: Lloyd & Lloyd Solicitors (appellant) Avondale Lawyers (respondent) File Number(s): 2023/00087196 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Date of Decision: 14 March 2023 Before: D Goldstein, Senior Member File Number(s): RT 23/03534 DECISION Background 1. These proceedings relate to a property at Sackville North in NSW. The respondent is the registered proprietor, and the appellant has been in occupation of the property, although not always in residence personally, since at least 2014. 2. The appellant appeals against orders made by the Tribunal on 14 March 2023. Those orders were as follows: "1 The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination namely, 14 March 2023. 3. The Tribunal finds that the parties entered into a Residential Tenancy Agreement on 22 May 2014. The respondent was required to pay rent of $3,200 per month payable in advance commencing on 22 May 2014. 4. The Tribunal finds that on 12 December 2022 the solicitors for the applicant/landlord served on the respondent a Notice to Terminate the Residential Tenancy Agreement. A demand for an amount of rent outstanding in the sum of $363,978.27 was made. 5. I accept the evidence of Mr De Prima a director of the applicant that the respondent has not paid the outstanding rent which accrued in the period 24 May 2014 to 24 December 2022." 1. It was not in dispute that the appellant and the respondent executed a residential tenancy agreement on 22 May 2014 (the Tenancy Agreement) which specified a term of six months and rent of $3,200 per month. The Tenancy Agreement contained special conditions as follows: "1. The period of tenancy cannot be extended past 12 months, 2. Prior to or at the expiration of 12 months the lessor will sell the subject property. 3. The lessor must provide the right of first option to the lessee to purchase the subject property. 4. The lessor agrees that any net sale proceeds received for the subject property in excess of $750,000 will be divided equally between the lessor and the lessee. 5. The lessee will be liable for all outgoings for the subject property, including but not limited to, council rates, water rates and land tax." 1. It is also not in dispute that the respondent's solicitors sent to the appellant on 12 December 2022 a "notice to terminate tenancy agreement" asserting that rent was unpaid in the amount of $329,600 and requiring the appellant to vacate the premises by 16 January 2023. The appellant did not dispute that he had not paid any rent in respect of the property. 2. The notice specified two bases for the termination. Those were: "End of fixed term tenancy" pursuant to s 84 of the Residential Tenancies Act 2010 (NSW) (RTA); and "Non-payment of rent, water usage charges or charges for supply of electricity, gas or oil" pursuant to section 88 of the RTA. 3. The respondent filed an application in the Tribunal on 24 January 2023 seeking orders for termination of the residential tenancy. 4. The application was listed in a Conciliation and Group List on 13 February 2023. Prior to that hearing, on 8 February 2023, the appellant filed a request for an adjournment. The grounds for that request were: "The Applicant and the Respondent have a long history of business dealings, with the Respondent being a director of the previous proprietor of the property that is the subject of the alleged Tenancy Agreement. The Tenancy Agreement on the face of it shows that the agreement between the parties extends beyond that of a simple lessor and lessee relationship. The Tenancy Agreement's special conditions grant the Respondent (among other things) an option to purchase the property and a share in the proceeds of the property's sale. The special conditions also stipulated that the property should be sold within or at the expiry of the Tenancy Agreement's fixed term. The Respondent requests that the Hearing be adjourned to allow him to seek further legal advice. It is anticipated that there will be a cross-claim in relation to this Application and that further issues may arise in relation to NCAT's jurisdiction which may result in the matter being transferred to the Supreme Court of NSW." 1. At the Conciliation and Group List hearing held on 13 February 2023, the respondent was represented by a solicitor, Mr Da Silva, and the appellant by Mr Widjaja of counsel. 2. The parties provided a transcript of that hearing which included the following: "MR WIDJAJA: … [W]e say there's another agreement beyond that that actually sits in the background of this residential tenancy agreement, and that includes the sale of the property and other special conditions and options that were given. We're seeking at least four weeks to have instructions taken in relation to what this arrangement was, and whether it needs to go to the Supreme Court. … MEMBER: So — and what does the tenant say about, you know, giving vacant possession? MR WIDJAJA: Well, at the moment, he's not entertaining that idea, because on his version of the events, there's another agreement which essentially said you didn't have to pay rent, hence why there is the full length of the lease. … MR WIDJAJA: … he's not paid any rent. And there's a question of whether there's an equitable right into this property that he's been given. … MEMBER: … Today, one of two things happen - you agree to some resolution to the matter, I make consent orders and everyone goes and has a cappuccino, or I make directions about the parties preparing their cases and set it down for hearing. It might get a hearing within a couple of months, … MR DA SILVA: … if the respondent believes their claim lies with the Supreme Court, they are definitely free to actually take the claim to the Supreme Court. However, it is the applicant's view that it's misguided to actually expect the Tribunal to transfer a matter which has not been even determined to the Supreme Court in circumstances where the orders sought are well within the jurisdiction of this Tribunal itself. … MR WIDJAJA: Member, we're seeking four weeks to get instructions. MEMBER: Yes, but what do say about what Mr Da Silva says, that the bare bones of a termination of a tenancy for non-payment of rent are there, and that should be dealt with today? MR WIDJAJA: Well, that can't be dealt with today, because there are other rights at play here, other rights that would jeopardise, potentially, my client's living circumstances in what seems to be the case that he has a right to l live there under than other [sic] this tenancy agreement. I mean, there's a big question as to this tenancy agreement is even a proper document. … MEMBER: What I propose to do is to adjourn the matter, maybe for a half-hour directions in three or four weeks time, and at — in the meantime, inviting the parties to make, you know, a couple of hundred words submissions about what their case is, so when it comes before the Member next time not me, I hope — they can, you know, see whether it should be dealt with or whether it needs to be transferred to the Supreme Court or what. In fact, I will make an order that a Senior Member deals with it on the next occasion. So I think that's the way forward. … MEMBER: It may be that all of this will be cleared up at the directions hearing, and the matter will be finalised — I don't know. But just on the run, in the first time it's in the list like this, I think it's a bit unrealistic to imagine that a matter like this will be dealt with to finality today. … I will direct the registry that they are to set it down for one hour directions hearing on the first available day after the 7th of March, and I will also make orders that the parties are to provide brief written submissions before that date to the Tribunal and to each other, outlining their contentions in the matter." 1. The Tribunal made orders adjourning the hearing to a date to be fixed and directing "that on or before 28 February 2023 the parties are to prepare file and serve brief written submissions on their contentions on the matter before the Tribunal." 2. A notice of hearing on 14 March 2023 was issued by the Tribunal on 14 February 2023. That notice was headed "Notice of directions hearing – virtual" and included "Important information" at the bottom which referred to two information sheets available on the Tribunal's website. 3. The respondents filed submissions and a statement of Mr Mark De Prima, a director of the respondent, on 27 February 2023. 4. The respondent's submissions maintained that the Tenancy Agreement executed in 2014 remained binding on the parties and the appellant/tenant had failed to pay rent. The submissions noted that the respondent could terminate without grounds pursuant to section 85 of the RTA but sought an earlier vacation of the property. These submissions also referred to ss 83 and 119 of the RTA which provide as follows: 83 Termination orders (1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect. (2) An application to the Tribunal by a landlord for a termination order— (a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and (b) must be made only if vacant possession of the premises is not given as required by the notice. 119 Prohibition on certain recovery proceedings in courts A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. 1. Mr De Prima's statement included the following: "2 I have reviewed the business records and confirm no payments have been received pursuant to the rent from the Sackville North property. 3 The property was purchased with the intention of developing the site. Mr Gordon offered to undertake the development work. He was to pay for the development costs to offset the non-payment of rent. … 5 Mr Gordon undertook to do what was necessary to have the development and approved and sold within the year. 6 This did not occur. Following the failed development the company agreed to enter into … further ventures with Mr Gordon.… 7 During the periods where the parties were working on this venture and at later dates, the company was told that Mr Gordon was involved in other ventures… The company would credit Mr Gordon for the rent and agreed to postpone repayment till after one or any of the ventures were complete. … 10 Mr Gordon offered to purchase the property for the purchase price of $2,500,000. This price was inclusive of all rents and other monies outstanding.… 11 On the expectation that Mr Gordon was going to buy the property the company took no further action against Mr Gordon. … 14 On or about 12 December 2022, the company sent a letter of demand seeking payment of the unpaid rent." 1. The appellant filed submissions on 28 February 2023. Those submissions were as follows: "1. Around 22 May 2014, the parties entered an agreement for mutual benefit (the Agreement) whereby the applicant obtained an interest in the land known as Lot 233 in deposited plan 752025 (the Land) and the respondent retained an interest in the land after conveyance to the Applicant. 2. The terms of the Agreement were part-written and part-implied. Particulars a) To the extent that they were written they are contained in the special conditions of the residential tenancy agreement entered by the parties on 22 May 2014. b) To the extent that they were implied they were necessary to lend business efficiency to the Agreement. [There were no paragraphs numbered 3 or 4] 5. The Agreement had 2 parts: 1) The initial sale of the Land (the First Agreement), and 2) The re-sale of the Land within 12 months (the Second Agreement). 6. Both the first agreement and the second agreement were entered into on 22 May 2014. 7. The respondent's entry into the first agreement was valuable consideration for the applicant's promise to perform the second agreement, namely the future sale of the land and the equal division of the proceeds after payment of the first $750,000 (the Threshold) to the applicant. 8. At the time of entry into the Agreement the respondent promised to make improvements to the Land, including the felling of trees. The Respondent has made improvements to the Land, including the felling of trees. 9. In breach of the Agreement the Applicant has not sold the land within 12 months or at all. 10. In breach of the Agreement the Applicant has not offered the Respondent any option to purchase the Land. 11. It was an implied term of the Agreement that the Respondent would be entitled to remain in and occupy the Land until it was sold. 12. In further breach of the Agreement, the Applicant failed to pay the full purchase price for the Land at the time of the conveyance or since. Particulars a) The purchase price was $750,000. b) $500,000 was paid on direction to discharge the mortgage. c) $250,000 remains outstanding. 13. The Applicant may not recover in circumstances where it has shown itself unwilling to perform its own obligations under the Agreement. 14. It is the Respondent's intention to seek specific performance of the Agreement and in particular the equal division of the proceeds after the threshold is realised. 15. Considering the limitations on the jurisdiction of the Tribunal, it will be necessary to commence proceedings in the Supreme Court and seek a stay or transfer of these proceedings." 1. The application came before Senior Member Goldstein on 14 March 2023. On that occasion Mr Gutierrez appeared for the respondent and Mr Adam appeared for the appellant. The transcript of that hearing discloses the following exchanges: "MR GUTIERREZ: … The application itself doesn't seek for any monetary relief and doesn't rely on the Tribunal's power to award any payment towards the landlord. It simply seeks to evict the tenant and have the tenant vacate the premises. That's what this application is for. It relies on - SENIOR MEMBER: Has a 90-day notice been served? MR GUTIERREZ: Not 90 days, Senior Member, 30 days because it says there has been a breach in that. The breach is that there has been non-payment. … SENIOR MEMBER: Under what section of the Residential Tenancies Act do you move on? MR GUTIERREZ: I move on section 87 — sorry, section 87, and I rely on section 187. … SENIOR MEMBER: Well, sorry, the breach that you rely on is what? MR GUTIERREZ: It's the failure to make payments when and where they're due to be paid — pay on time, which is clause 3, subclause 3.1 of the residential agreement. SENIOR MEMBER: Yes. MR GUTIERREZ: I turn my mind to my friend's submissions, which in essence are seeking that the matter be transferred to the Supreme Court of New South Wales because I believe that they seek some sort of relief that cannot be granted by the Tribunal. There's no application before the Tribunal. I haven't received any information as to what they propose to do. The application itself is well within the jurisdiction of the Tribunal, and I also note too that it's one of these "must" provisions, that the landlord must bring this application before the Tribunal, and thus enacting section 119 of the Act. … MR ADAM: Senior Member, I rely upon my outline of submissions. In essence, the agreement is an agreement for the resale of the land within a certain period of time, 12 months, and thereafter the proceeds to be divided equally in excess of $750,000. I mean, this is all set out in the special conditions, and the effect of this is that for the relief that the respondent seeks, he is going to need specific performance of the contract, and I understand that that is not a power that the Tribunal has. SENIOR MEMBER: Yes, well, as I understand it, the applicant is seeking a termination order under the Residential Tenancies Act and we do have the power for that. MR ADAM: Yes. Yes, but for - the defence is in essence to seek specific performance, that what is really at issue here is - - - SENIOR MEMBER: Well, why don't you go up to the Supreme Court and seek specific performance? Why does your client have to remain as a non-paying tenant of the land in order for you to get orders for the sale of the land and what-have-you? … SENIOR MEMBER: It seems to me that, basically, for whatever exotic agreement your --- the parties entered into concerning the sale of the land and what-have-you, the occupation of the land by the respondent in the capacity of a tenant is not essential to that. … SENIOR MEMBER: … Is there any provision that says that the tenant can't be evicted if the landlord is in breach? I don't believe so. MR ADAM: It still remains that the only remedy available to the respondent is to seek specific performance of the agreement, and moreover the special conditions. SENIOR MEMBER: Well, what's stopping the respondent from doing that? MR ADAM: Well, we are we just need a little time to do it, but just— we just a briefest of pauses in which to gain instructions. This matter has come on comparatively recently. SENIOR MEMBER: It's come on the 24th of January. You've had all of February and — you've had eight or so weeks. MR ADAM: Yes. SENIOR MEMBER: It's now the 14th of March. There's been - if it was so urgent, I would have thought in all of February and before now you'd be in the Supreme Court, if need be, injuncting these proceedings here. But the matter came before the Tribunal some time ago, on the 13th of February. … So do you have anything more that you wish to say, Mr Gutierrez? MR GUTIERREZ: Other than that there's no evidence before the Tribunal either to substantiate any of these claims. I think our strongest submissions are that we're in the right jurisdiction, the Tribunal is empowered to make the order, my friend does not seek an order that otherwise to terminate the — that otherwise says the agreement is not in effect, that otherwise seeks to transfer the matter to the Supreme Court. … SENIOR MEMBER: All right. Is there anything further you'd like to say, Mr Adam? MR ADAM: Other than that our instructions are, there was no attempt to seek payment until now. There was no method by which payment was to be made, that in effect, it was never intended that there be some payment of rent. It was never asked for. It is only in the last month or so that this has been applied for. SENIOR MEMBER: All right. Well, Mr Adam, I can't take evidence from the bar table. MR ADAM: But it will be an issue in the proceedings. SENIOR MEMBER: Yes. Which proceedings? The Supreme Court proceedings? MR ADAM: These proceedings, the Supreme Court's proceedings - all proceedings. SENIOR MEMBER: Well, if it's going to be an issue, Mr Adam, I'm sure you're aware it has to be an issue which is based on evidence, and as I just said, I need evidence -- yes, I can't take evidence from the bar table. … I'm going to read those documents, and my decision is reserved, and hopefully I will get a decision out today." 1. On that day Senior Member Goldstein published orders as set out above. 2. The appellant filed his Notice of Appeal on 16 March 2023. On 29 March 2023 the order for possession was stayed by consent, on conditions, until further order or the finalisation of this appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 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 an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements 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). 2. In Collins v Urban, the Appeal Panel stated at [84] 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." Grounds of appeal 1. The appellant's Notice of Appeal set out, in an attachment, five grounds of appeal as follows: "1. The Tribunal did not afford the Appellant natural justice prior to final orders being made for the termination of the tenancy agreement and that the Appellant give up possession immediately. 1.1. The Tribunal erred in conducting a final hearing and making final orders in circumstances where the proceedings had been listed for Directions only and no direction or order had been made for the Appellant's evidence. 1.2. The Tribunal erred in depriving the Appellant of the opportunity to rely upon its evidence and make proper submissions. 2. The Tribunal erred in finding that the Appellant had frequently failed to pay rent for the premises. 3. The Tribunal did not consider or failed to give any weight to the Respondent's evidence that rent was not payable. 4. The Tribunal erred in finding that on 12 December 2022, the Respondent issued a valid Notice to Terminate. 4.1. The Respondent's Notice of Termination relied on non-payment of rent pursuant to section 88 of the Residential Tenancies Act 2010 ("the Act") in circumstances where rent was not due and payable. 4.2. The Respondent's Notice of Termination also asserted that it was the end of a fixed term tenancy pursuant to section 84 of the Act, when in fact it was a periodic tenancy and the longer notice period of 90 days was required. 5. The Tribunal erred in failing to consider the Appellant's contention that the tenancy agreement included a term that the Appellant may occupy the subject premises until they were sold." 1. The appellant also sought leave to appeal on each available basis. The reasons given that leave should be granted essentially repeated the grounds of appeal. 2. The new evidence now available that was not reasonably available at the time of the hearing was said to be: "1 Witness statement of the Appellant; 2 Evidence that rent was not payable; 3 Evidence of additional terms to the Tenancy Agreement; 4 Evidence in reply to the evidence put forward by the Respondent/Landlord." 1. Mr Loxton, of counsel, who appeared for the appellant, accepted in the course of oral submissions that paragraph 2 of the grounds of appeal did not impugn the order for termination and that the remaining grounds could be subsumed into one ground, that is: That the Tribunal failed to afford the appellant procedural fairness when it proceeded to determine the application for termination, when the notice of hearing stated that the hearing would be a directions hearing and the appellant had not filed the evidence upon which he would have sought to rely to establish that the appellant was not required to pay rent under the Tenancy Agreement. 1. The appellant filed in support of his appeal a statement from his former solicitor, Mr See, attesting that he "did not understand that there would be a final hearing on 14 March 2023 and the appellant did not have the opportunity to file and serve evidence or prepare final submissions". 2. The appellant also filed a statement which was said to be the evidence which the appellant "was not given the chance to produce". That statement stated, inter alia: "In discussions between us [the appellant and Mr De Prima] it was agreed that I would continue to live at and use the property and that together we would develop the property to increase its value. It was agreed that no rent would be payable and that the property would be sold and half the proceeds above the amount of $750,000 would be split evenly between us. If or when the property was sold, I would have first right of refusal." 1. The appellant also stated that he had undertaken work towards the development of the property and: "23 At no time have I ever paid rent to the respondent. The notice sent in December 2022 was the first time I ever received a formal demand for the payment of rent. 24 I would not prevent the respondent from marketing the property for sale while I continue to live there, although I do reserve my right under the agreement in respect to my right of first refusal to purchase the property." 1. Mr Loxton relied upon further written submissions for the appellant filed at the hearing (Further Submissions for the Appellant). The conclusion to those submissions was as follows: "1. While the parties admit the RTA made on 21 May, 2014, they also say that there was a concurrent agreement dealing with the development of the land. The landlord referred to the existence of this concurrent agreement in its statement of 27 February, 2023. 2. The nature and scope of that agreement has not been tested and probably requires the intervention of the Supreme Court to make declarations to settle the terms of the concurrent agreement. 3. That determination will decide whether or not the tenant is in breach of the RTA and any rent is outstanding and if so, the quantum of that rent. 4. The matter was decided before the tenant had filed his evidence. 5. He is not at fault over that, because he has never been instructed to serve any evidence. 6. The landlord pressed for final orders on 14 March, 2023 in breach of the directions given on 13 February, 2023 7. The appeal should be allowed with the orders of 14 March, 2023 to be quashed. The matter can then be returned to the Tribunal with directions for the exchange of evidence and submissions when the matter can be fairly heard. 8. Those orders therefore deal with the stay which is not longer necessary." 1. The respondent submitted that the appellant had been afforded every opportunity to provide the evidence that he sought to rely upon before the final orders were made for termination of the Tenancy Agreement and possession. The respondent further submitted that it cannot be said that the Tribunal erred in failing to consider the appellant's contention that the Tenancy Agreement included a term that the appellant may occupy the premises until they were sold. The respondent submitted that the terms of the Tenancy Agreement did not include such a term. 2. We note that the appellant forwarded two emails to the Appeal Panel Registry on 7 August 2023, after we had reserved our decision on 9 May 2023. The respondent forwarded an email in response to the first of those emails, noting that it had not consented to the sending of that email and that it opposed the Appeal Panel taking into account any of the matters referred to in the email. 3. It was not appropriate to file further material without leave after the Appeal Panel had reserved its decision. As the Appeal Panel held in Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 at [109], citing Bale v Mills [2011] NSWCA 226 at [57] to [61], sending submissions without leave to the Appeal Panel is wrong, the Appeal Panel may and generally will ignore what has been sent. 4. We have not, in considering the appeal, had regard to any matter referred to in the emails which the appellant forwarded to the Registry on 7 August 2023. Consideration 1. The appellant is correct in noting that the proceedings were fixed on 14 March 2023 for directions and not for hearing. Had the appellant been unrepresented, it may have been a denial of procedural fairness for the Tribunal to proceed to determine the application without confirming with the appellant that he was ready for that to occur: see for example Waters v Chai [2016] NSWCATAP 248 at [50] – [62]. 2. However, the appellant was represented by a legal practitioner. It was clear from the exchanges between the Tribunal and Mr Adam that the Tribunal was embarking upon a hearing of the matter. There was no protest from Mr Adam. In particular, when the Tribunal said that it needed evidence and couldn't take evidence from the bar table, Mr Adam did not make any submission that the matter was only listed for directions or that his client had not had an opportunity to file evidence. 3. It cannot be said that the Tribunal embarked upon the determination of the application without notice to the appellant or without giving the appellant an opportunity to be heard. 4. Moreover, in circumstances where the appellant acknowledged the existence of the residential tenancy agreement in its express written terms, there was no apparent basis upon which the appellant could resist the termination of the residential tenancy agreement. 5. The submissions upon which the appellant relied on 14 March 2023 do not allege an agreement that the appellant could occupy the premises for eight years (or any period) without paying rent. The submissions alleged only that the appellant "would be entitled to remain in and occupy the land until it was sold" and qualifications to the obligation to pay rent. These were alleged to be implied terms or arise as part of a "concurrent agreement". Any such alleged implied term would fall foul of the rule that a term will not be implied into a contract which contradicts an express term of the contract: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347. Any alleged "concurrent agreement" remained, as the Tribunal said, open to such enforcement or other proceedings in the Supreme Court as the appellant was advised. 6. The Tribunal had directed the parties to file submissions "on their contentions on the matter before the Tribunal". The appellant had filed, and made, submissions in accordance with those directions and at the hearing where those submissions were considered. Those contentions did not provide any basis for resistance to the clear case for termination and possession arising on uncontested facts. It was not procedurally unfair to refuse a further adjournment and finalise the proceedings in such circumstances. 7. In any event, the evidence relied upon by the appellant (including the further evidence filed in support of the appeal) does not support the existence of such an agreement even if the Tribunal ought, for procedural fairness and contrary to our conclusion that what occurred was not procedurally unfair, to have permitted a further adjournment for filing and service of that evidence and submissions and such evidence and submissions had been filed and served. The Further Submissions for the Appellant asserted that the concurrent agreement was "demonstrated by": "a. The nature of the special conditions to the RTA concerning the maximum length of the lease, the distribution of the proceeds of any sale and the tenant's first right of refusal on any sale. b. The delay by the landlord in bringing these proceedings. c. The submissions made by Mr Widjaja on 13 February, 2023 at TP2.40. d. The orders made by Member Mr S Smith on 13 February, 2023 at TP 9.40. e. Submissions made by counsel for the landlord on 14 March, 2023 at TP3.10 f. The written statement of Mr Mark de Prima made on 27 February, 2023 at paragraph 3 – RB27 g. The second written statement of Mr de Prima made on 1 May, 2023 at paragraphs 4 and 9 RB 31 h. The written statement of Mr Jerry Gordon made on 22 March, 2023 at paragraphs 5, 8, 9, 10, 16, 17, 18, 19 and 20 – AB 48. 1. The special conditions in the Tenancy Agreement do not excuse the appellant from paying rent. Submissions made by counsel for the appellant cannot establish the existence of an agreement or the terms of any agreement. The orders of the Tribunal could have no relevance to that issue. Mr Gutierrez' submissions on 14 March 2023 went no further than acknowledging that the Tenancy Agreement had "some unusual characteristics". Mr De Prima's evidence refers to rent being offset against development costs paid by the appellant and the deferral of rent while certain ventures were pursued, with none being finalised. Mr De Prima does not acknowledge an agreement that the appellant would never pay the rent due under Tenancy Agreement. 2. While the appellant's statement asserts an agreement between the parties "that no rent would be payable", the appellant does not attempt to explain how that agreement can be reconciled with the parties' entry into the Tenancy Agreement. 3. Since the appellant claimed to have filed in support of the appeal the evidence upon which he would have relied if he had been given the opportunity to do so, we are satisfied that the fact that the Tribunal determined the application before the appellant had filed the evidence upon which he sought to rely made no difference to the outcome of the application. Hence, even if we were incorrect in concluding that there was no denial of procedural fairness in the Tribunal's determination of the application on 14 March 2023, we would find that any denial of procedural fairness was not material to the decision reached by the Tribunal: See Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2021] HCA 17. The appellant has not established that the exclusion of that evidence was material in that, had that evidence been before the Tribunal on 14 March 2023 or at a later hearing, there was a realistic prospect of a better outcome: Nathanson v Minister for Home Affairs [2022] HCA 26. 4. The appellant is not precluded by the Tribunal's orders from taking such action as he may be advised to resolve the other alleged rights and obligations between the parties. Mr Gutierrez, who appeared for the respondent at the hearing of the appeal, acknowledged (as the Tribunal also noted during the hearing on 14 March) that an order terminating a residential tenancy agreement and an order for possession, as mandated by section 83 of the RTA, do not create any issue estoppel or res judicata preventing the appellant from making any claim, in proceedings in an appropriate forum, to an entitlement in respect of the property. 5. Although it was not the subject of any ground of appeal, the appellant made the submission at the hearing of the appeal that he should be allowed time to move from the property, if his appeal was not successful. The orders made on 14 March 2023 did not allow the appellant time to vacate the property but required possession to be given on that day. The appellant's statement included evidence that he had a number of heavy items of equipment on the property which it will be expensive and time consuming to move. The appellant also stated that it had taken him and his family two weeks to move into the property in August 2022 after he had lived elsewhere for a number of years. The appellant maintained that his ex-wife and daughter have resided on the property throughout the tenancy. The appellant sought a period of at least four weeks to vacate the property. 6. We did not understand Mr Gutierrez to oppose the orders of the Tribunal being varied to allow the appellant four weeks to vacate the property in the event that the appeal is dismissed. We consider such a variation to the orders to be appropriate and will vary the orders made on 14 March 2023 to suspend the order for possession until four weeks after the publication of this decision. 7. For the foregoing reasons, leave to appeal will be refused and the appeal dismissed, subject to the amendment of the orders referred to in the preceding paragraph. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed except for varying order 2 made on 14 March 2023 in proceedings RT 23/03534 so that the date upon which possession is to be given is 28 days after the date of these orders. 3. Note that the stay order made by consent on 29 March 2023 is lifted by virtue of these orders on the date of these orders. ********** 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2023