Conway v Sun

[2025] NSWSC 1135

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Conway v Sun [2025] NSWSC 1135

Hearing dates:

25 September 2025

Date of orders:

29 September 2025

Decision date:

29 September 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The plaintiffs shall bring in Short Minutes of Order reflecting this decision within 24 hours of the publishing of this decision.

Catchwords:

ADMINISTRATIVE LAW – judicial review of administrative decision – where interim relief sought seeking stay on NCAT orders and restraint on NCAT making further orders – where jurisdictional question raised – relief against forfeiture - where serious questions to be tried – conditions – orders granted

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Residential Tenancies Act 2010 (NSW)

Western Lands Act 1901 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Ballam v Higgins (1986) 17 IR 131

Black v Hunter New England Health Service [2010] NSWSC 1252

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21

Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465

Johnston v Boyd [2023] NSWSC 194

Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531; [2010] HCA 1

Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; (2014) 17 BPR 33,147

Minister for Lands & Forests v McPherson (1991) 22 NSWLR 687; (1991) NSW ConvR 55-573

NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (NSW) (2001) 53 NSWLR 559; [2001] NSWSC 494

Sneakerboy Retail Pty Ltd (t/as Sneakerboy)

v Georges Properties Pty Ltd [2020] NSWSC 996; (2020) 19 BPR 40,443

Talatala v Esguerra [2020] NSWSC 994

Weinel v Judge Parsons (1994) 62 SASR 50; (1994) 56 IR 76

Texts Cited:

Peter Butt, Land Law (6th ed, 2010, Thomson Reuters)

Category:

Procedural rulings

Parties:

Vashti Elizabeth Conway (First Plaintiff)
Farshad Amirbeaggi (Second Plaintiff)
Quidi Sun (First Defendant)
Jianchao He (Second Defendant)

Representation:

Counsel:
A. Fernon SC (Plaintiffs)
E.W. Young (Defendants)

Solicitors:
Yates Beaggi Lawyers Pty Ltd (Plaintiffs)
Bloomsbury Legal (Defendants)

File Number(s):

2025/339784

Publication restriction:

Nil

JUDGMENT

1. On 13 June 2024, the plaintiffs in this proceeding, Vashti Elizabeth Conway and Farshad Amirbeaggi entered into a residential tenancy agreement (“the Agreement”) with respect to the property (“the premises”) for 104 weeks. The rent payable under the Agreement was initially $5,000 per week. That amount increased to $5,500 per week after the first year of the tenancy.

2. The landlords shown under the Agreement were Quidi Sun and Jiamchao He (“the landlords”).

3. On 19 August 2024, Mrs Conway filed a Tenancy and Social Housing Application (“the application”) with the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) (“the proceedings”). In the application, Mrs Conway nominated that there is a dispute regarding “repairs” and sought an order, inter alia, that the rent be abated to $3,000 per week from the commencement of the Agreement until the landlords completed “the works required to the property to achieve the standard and quality at which the property was advertised and upon which the lease was negotiated”.

4. On 3 October 2024, Mrs Conway filed an affidavit in the proceedings in which she elaborated upon the claims made by the plaintiffs. The further orders sought included repairs to the timber flooring of the premises; costs associated with moving and storing furniture or seeking alternative accommodation during the execution of the repairs; and compensation for loss of enjoyment of the premises.

5. On 25 February 2025, those proceedings were transferred to the District Court of New South Wales by Member Terceiro of the Consumer and Commercial Division of NCAT. In a short decision, Member Terceiro stated that he had transferred the proceedings of his own motion because, inter alia, the amount sought by the plaintiffs exceeded the maximum statutory limit of the Tribunal for claims brought under the Residential Tenancies Act 2010 (NSW) (“RTA”) and also exceeded the maximum claim amount of $100,000 for consumer claims under the Fair Trading Act 1987 (NSW). Member Terceiro also found:

“The final issue is whether the NSW District Court has jurisdiction to determine the claim. In this regard, it seemed to me that the claims being put by the applicant were more properly characterised as consumer claims and allegations of misleading and deceptive conduct contrary to the relevant provisions of the FTA and the Australian Consumer Law 2010…”

6. On 1 July 2025, Mrs Conway filed a Statement of Claim (“SOC”) in the District Court seeking orders for damages for breach of the Agreement; damages and compensation pursuant to s 236 of Sch 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”) and orders pursuant to s 237 of the ACL varying the Agreement, including that no rent was payable under the Agreement from its inception until the date of any orders made by the Court. Various pleadings were made, including that the plaintiffs had, since occupation of the premises, made numerous requests to the landlords to repair damage, but the landlords refused to affect the repair.

7. On 23 July 2025, the agent for the landlords issued a Notice to Terminate Tenancy Agreement due to the non-payment of rent (“Notice of Termination”). I will return to the non-payment of rent below.

8. On the same day, Mrs Conway filed a Notice of Motion (“the District Court Motion”) in the District Court proceedings, seeking that the Notice of Termination be set aside, and that the rent payable under the Agreement be reduced to such sum as the court “reasonable [sic] determines”.

9. On 8 August 2025, the landlords brought an application, described as an “application notice” (“the Termination Application”). In that Application, the landlords sought an order to terminate the Agreement due to the plaintiffs’ non-payment of rent for more than 14 days pursuant to s 88 of the RTA and an order for vacant possession of the premises. The landlords also sought an order for the plaintiffs to pay rent arrears.

10. On the same day, the Tribunal gave notice of a conciliation and hearing of the termination application, scheduled for 1 September 2025.

11. In the affidavit of Sheng Xu, the managing agent of the premises filed in these proceedings (“the Xu affidavit”), it was posed that as at 1 September 2025 the plaintiffs were in arrears of rent of more than 14 days in the total amount of $43,725. He also deposed that as at 19 September 2025, total rent arrears and occupation fees owing were $57,867.86.

12. On 1 September 2025, the Tribunal constituted by Mr D Nash, General Member, made orders terminating the Agreement effective that day and giving vacant possession to the landlords (collectively, “the Tribunal orders”). The Tribunal suspended the operation of the order of possession until 3 November 2025 and ordered that the plaintiffs pay the landlords a daily occupation fee.

13. The Tribunal gave reasons for decision which were annexed to the orders but dated 3 September 2025 (“Reasons for Decision”). In his reasons for his decision, Mr Nash nominated, as the central basis for his decision, that the plaintiffs had breached the Agreement by failing to pay rent. He also dealt with, by way of rejection, an application by the plaintiffs for an adjournment upon the basis that the Tribunal did not have jurisdiction to deal with the termination application because of the existence of the SOC and the District Court Motion.

14. Two other aspects of the reasons for the decision warrant mention. First, the Tribunal made some observations to the effect that the Tribunal was the only forum in NSW that could make the orders sought by the landlords. That passage of the decision was as follows:

“[6] As the first of two preliminary matters, the Tribunal is the only forum in NSW that can make the order sought by the landlords:

(a) As much is clear from section 81 RTA headed "Circumstances of termination of residential tenancies" and in particular sections 81 (1) & 81 (3).

(b) This may also be the result of section 119. There may be an issue about whether section 119 is jurisdictional or defensive: see Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163, [7]ff. Here, that does not matter as it is not the landlords who seek something in one or other of the courts mentioned in section 119, rather it is the tenants who seek in the Tribunal that the Tribunal not make an order which one or other of the courts cannot make.

(c) The question of the nature and extent of the Supreme Court's jurisdiction, whether statutory, inherent, supervisory or equitable, to investigate the proposition that the Tribunal is the only forum is always a difficult question. The question does not here.

(d) There is also the question of whether the Tribunal can transfer an application for a termination order to another forum. The Tribunal observes that the District Court proceedings themselves – ie the tenants' claim against the landlord - started life in the Tribunal. The Tribunal would certainly want to hear argument on transferring an application given section 81 RTA, but the issue does not arise. Neither party asks that this application for a termination order be heard and determined in the District Court.”

15. The second aspect of the reasons for decision concerned a contention by the plaintiffs that the Tribunal lacked jurisdiction to determine the Termination Application having regard to the operation of s 5(7) of Pt 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”). The Tribunals decision in that respect was as follows:

“[15] Firstly, they say that the tenants' statement of claim was filed in the District Court on 1 July 2025, a date prior to 8 August, that there is an issue arising under the landlords' application to the Tribunal, and that the issue in the subject of a dispute in the District Court proceedings. This, they say, means that clause 5(7) is engaged and the Tribunal ceases to have jurisdiction.

[16] The Tribunal rejects the submission. Arrears have accrued and the notice of termination if otherwise valid duly founds an application for an order of termination made to the Tribunal. While not put in terms of an agreed fact, it patently is. The tenants' case is not "We will not pay rent", it is "We will pay rent but not to the landlords". That is neither an issue arising under the landlords' application to the Tribunal nor an issue in the subject of a dispute in the District Court proceedings.

[17] Secondly, they say that the tenants' notice of motion filed in the District Court on 23 July 2025, a date prior to 8 August, engages clause 5(7). The notice of motion is returnable later in September.

The motion seeks:

"(1) That the notice of termination [relied on by the landlords in the proceedings today] be set aside.

"(2) That until further order the rent payable under the Residential Tenancies Agreement be reduced to such sum as the Court reasonably determines.

"(3) In the alternative to prayer 2 that until further order the rent payable under the residential tenancy agreement be paid into court.

"(4) [The landlords] pay [the tenants'] costs of this motion.

"(5) Such further or other order as the court deems fit."

[18] The Tribunal today is only concerned with the first prayer. That said, it may be observed that when a tenant brings a claim for rent reduction in the Tribunal, that has never been regarded as an answer to a claim by a landlord for a termination order founded on arrears. It is inconsistent with the legislative purpose and inconsistent with the bifurcated nature of a residential tenancy agreement.

The fact that this claim happens by virtue of its amount to be in a different forum is neither here nor there on the current question of the tenants' adjournment application.

[19] The tenants seek relief - it happens to be setting aside but it does not matter - in relation to the notice of termination.

[20] For the reasons given earlier, the Tribunal is the only forum with power to make a termination order founded on the notice of termination. Unsurprisingly, the legislature says "A landlord or tenant may apply to the Tribunal for an order in relation to a dispute about a termination notice": section 111 (1) RTA. It is unsurprising that the only forum to act upon a termination notice is given power to hear a dispute about the termination notice. A bankruptcy court is the only forum able to order sequestration of a debtor's estate, and a bankruptcy court is given power to hear a dispute about a bankruptcy notice, a capital-C court is the only forum able to order winding-up of a corporation and a capital-C court is given power to hear a dispute about a creditor's statutory demand, and so the list goes on.

[21] But the question for the Tribunal is not, have the tenants wrongly brought a dispute about the termination notice in the District Court. If that were the question and notwithstanding the Tribunal's own remarks above, clause 5(7) may have the result the tenants seek. In any event, the Tribunal may give an adjournment for the simple reason that while the Tribunal may have a view about the Tribunal's role, the Tribunal's role is not to tell the District Court the District Court's role.”

THE PRESENT PROCEEDINGS

16. By an amended Summons filed on 16 September 2025 (“the Amended Summons”), the plaintiffs sought interim and final relief.

17. In the application for final relief the plaintiff sought the following:

1. The Tribunal orders be set aside.

2. Relief against forfeiture of the Agreement.

3. The defendants pay the plaintiffs costs of the proceedings.

18. The interim relief sought by the plaintiffs was as follows:

1. A stay on the operation of the Tribunal orders.

2. Until further order, a restraint on the Tribunal on making any further Orders concerning the Agreement (“the application for interim relief”).

19. The grounds for relief were, inter alia, the Tribunal lacked jurisdiction to make any of the Tribunal orders including terminating the Agreement and ordering vacant possession of the premises.

20. With respect to the relief against forfeiture, the grounds for relief in the Amended Summons stated that “[the] plaintiffs will plead their claim for relief against forfeiture pending the outcome of the application for interim orders.”

21. As will become evident, the plaintiffs, in fact, took a different course during the hearing before the Court regarding the application for interim relief, to which I will return.

22. By a Notice of Motion filed on 5 September 2025, the plaintiffs sought relief replicating the application for interim relief in the Amended Summons.

23. In oral submissions, the plaintiffs contended that the application for interim relief was predicated upon two bases:

1. Judicial review of the Tribunal orders on jurisdictional grounds upon the basis that, as stated in the Amended Summons, the Tribunal lacked jurisdiction to make the Tribunal orders.

2. The grant of the stay pending the determination of the relief against forfeiture.

24. This judgment concerns the Amended Summons so far as the plaintiffs made an application for interim relief and the Notice of Motion both relevantly adjusted by the oral submissions of Mr Andrew Fern SC for the plaintiffs, in reliance upon relief against forfeiture as a further basis for the grant of the stay.

25. The plaintiffs relied upon the affidavit of Mrs Conway of 12 September 2025 (“Mrs Conway’s first affidavit”) with the accompanying Exhibit VEC-1 and the affidavit of Mrs Conway of 23 September 2025 (“Mrs Conway’s second affidavit”).

26. The defendants relied upon the Xu affidavit.

27. Neither Mrs Conway or Mr Xu were required for cross examination.

LEGAL PRINCIPLES

28. Whilst various issues of law were raised in relation to the issue of the Tribunal’s jurisdiction and relief against forfeiture, there was no dispute as to the essential criteria for establishing a proper bases to grant interlocutory relief.

29. The granting of an interlocutory relief is to be determined by assessing whether the Plaintiffs have established a serious question to be tried (or a prima facie case), that damages is not an adequate remedy and that balance of convenience favours the granting of relief (see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19], [65]-[71]).

SERIOUS QUESTION TO BE TRIED

Judicial Review

30. For the purposes of the judicial review proceedings, the question which arises is whether the provisions of s 5(7) of Pt 5 of Sch 4 of the CAT Act (“the subject provision”) operated so as to exclude the jurisdiction of the Tribunal to make the Tribunal orders.

31. Sch 4 concerns the Consumer and Commercial Division of the Tribunal, in which applications under the RTA are heard.

32. The subject provision is in the following terms:

(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

33. The Tribunal was aware of the existence and subject of the District Court proceedings before making the Tribunal orders.

34. Those District Court proceedings and the operation of the subject provision was the subject of argument and reasons for decision by the presiding Member Mr Ash. The issue of the District Court proceedings and the jurisdiction of the Tribunal was considered at [5]–[25] of the reasons for decision.

35. The Tribunal’s reasons for making the Tribunal orders were, in substance, that, given the Tribunal has exclusive jurisdiction under the RTA to consider the issue of termination, there could be no relevant issue before the District Court.

36. The essential question raised by the plaintiffs in the judicial review proceedings was whether the Tribunal lacked jurisdiction to make the Tribunal orders because of the subject provision.

37. Counsel for the defendants did not dispute that the plaintiffs had an arguable case with respect to that jurisdictional issue, but contended that there would be a “real debate about whether or not simply claiming an abatement of rent unilaterally, and before that claim has been determined, means a determination order cannot be made”.

38. As I understand the argument which would be advanced by the defendants in respect to the jurisdictional question, it was as follows:

1. Whether an issue arising under the application for termination of the Agreement was the subject of the dispute in proceedings pending before the District Court. In substance, the defendants would argue that there was a separation between issues associated with the failure to pay rent and the abatement of rent giving rise to the termination order and proceedings for the termination of the Agreement.

2. Whether the District Court proceedings were, in substance, no more than the Tribunal proceedings transferred to that Court.

39. In my view, as to the jurisdictional question raised by the Amended Summons, there is, at least, a serious question to be tried for the following reasons:

1. The subject provision is amenable to a construction that the provision will operate in any circumstance where there is a relevant issue before a court. Thus, the provision may operate where the issue is before the court, irrespective of whether the relevant issue is properly before the court. The relevant redress in that respect would be to have the question of the court’s jurisdiction ventilated before that court.

2. In any event, in this case, there was before the District Court, the transferred proceedings from the Tribunal together with the District Court Motion and the SOC. The proceedings before that court included issues as to what rent was payable under the Agreement from its commencement, to where the rent should be paid and the issue of setting aside the Notice of Termination. There is also a claim for damages brought for the breach of the Agreement and for misleading and deceptive conduct. It is arguable that relief may be granted under the ACL to set aside the termination of the Agreement. The defendants’ submissions that, in substance the transfer proceedings before the District Court essentially constituted the Tribunal proceedings or something akin thereto, would not seem to be a very strong argument.

1. The plaintiffs advanced a submission that the Tribunal was in error in finding that it had exclusivity in relation to the Termination of Application so far as it covered the termination of the Agreement in contrast to any part of the application seeking orders for possession. In that respect, it was contended that the Tribunal had discounted the operation of the subject provision because it had misunderstood the scope of ss 81 and 119 of the RTA. There is some real force in the submissions advanced by the plaintiffs in that respect.

2. Section 119 of the RTA only restricts power where the landlord seeks possession of premises. Section 81 of the RTA concerns only orders for termination. It is doubtful that neither section says anything about proceedings to vary the RTA, including the rent payable and the validity of a termination notice, which is a perquisite to commencing termination proceedings.

3. Paragraph [20] of the reasons for decision refers to alleged exclusivity in the Tribunal to make an order for termination under s 111 of the RTA. Section 111 of the RTA does not give exclusive jurisdiction to the Tribunal about the validity of the termination notice. As noted by Ward CJ in Eq (as her Honour then was) in Talatala v Esguerra [2020] NSWSC 994 (at [16]), whilst s 119 of the RTA gives exclusive jurisdiction, sections such as 187 and 190 of the RTA only give the Tribunal jurisdiction, not exclusive jurisdiction. The same reasoning applies to the jurisdiction granted by ss 81, 83 and 111 of the RTA.

4. As Griffiths AJA held in Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465 at [88] – [89]:

"[88] Save in respect of certain matters (such as proceedings for recovery of possession of residential premises subject to a residential tenancy agreement, as to which see s 119 of the Residential Tenancies Act), the Tribunal does not have exclusive jurisdiction in relation to disputes concerning residential tenancy agreements. Subject to their own individual monetary limits on jurisdiction, both the Local Court (see ss 29, 30 and 31 of the Local Court Act) and the District Court (ss 9, 44 and 48 of the District Court Act 1973 (NSW)) have jurisdiction, as does the Supreme Court. These courts may, however, decline to grant relief in the exercise of their respective jurisdictions concerning such disputes if they are satisfied that there is an adequate alternative remedy available, such as in NCAT. [89] Because of the potentially overlapping jurisdictions between NCAT and, in particular, the Local Court and the District Court with respect to residential tenancy agreement disputes, it is relevant to note that Pt 5 of Sch 4 of the CAT Act contains provisions which address the relationship between NCAT and courts concerning the functions of the Consumer and Commercial Division of NCAT. As Leeming JA noted in Vickery v Owners — Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 at [104], these provisions proceed on the basis that the jurisdiction of that Division of NCAT overlaps with those of the courts. In the case of the Local and District Courts, where there is an application pending in NCAT for the exercise of a Division function, and no issue arising under the application is the subject of a dispute in proceedings before a court, a court has no jurisdiction to hear and determine that issue. Where, however, an application is made to NCAT for the exercise of a Division function, and there are pending proceedings before a court, on becoming aware of those court proceedings, NCAT ceases to have jurisdiction to hear or determine the issue (see subcll 5(3) and (7) of Pt 5 of Sch 4 of the CAT Act)."

40. The plaintiffs have a prima facie case to challenge the jurisdiction or the Tribunal to make the Tribunal orders having regard to the considerations above.

Relief against Forfeiture

41. The principles for relief against forfeiture were set out be Robb J in Sneakerboy Retail Pty Ltd (t/as Sneakerboy) v Georges Properties Pty Ltd [2020] NSWSC 996; (2020) 19 BPR 40,443 (“Sneakerboy”) (albeit relating to a retail lease during the COVID-19 period). In my view, those principles potentially apply generally across all leases, including residential leases (see Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; (2014) 17 BPR 33,147 (“Kofoo”) per Robb J at [111]- [114]).

42. The relevant principles were set out in [69]-[70] of Sneakerboy as follows:

"[69] In Wilkinson v S & S Gikas Pty Ltd (2006) 12 BPR 23,685; [2006] NSWSC 1314; BC200609998, Campbell J (as his Honour then was) said at [23] and [24]:

[23] The granting of relief against forfeiture is discretionary. In relation to a lease, the principle that is generally applied is that the power to re-enter or forfeit for non-payment of rent is regarded as being in substance security for the rent. Provided the lessor and other persons concerned can be put in the same position as before the forfeiture or re-entry, the Court will usually grant relief against forfeiture upon payment of rent, costs, interest and other expenses: Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562. If those terms are offered, it is only in a rare case that the Court would refuse relief against forfeiture. The principle on which that is done is that, once the landlord has got all that the right of re-entry was, in equity’s eyes, security for, it would be unconscionable for the landlord to insist on its legal right to re-enter.

[24] However, such a rare case can occur if the tenant is unable to pay future rent, or may reasonably be expected to become so: Direct Food Supplies (Victoria) Pty Ltd v DLV Pty Ltd [1975] VR 358; Tannous v Cipolla Bros Holdings Pty Ltd (2001) 10 BPR 18,563; [2001] NSWSC 236; BC200101510 at [38]. If there is a sufficiently serious risk that the tenant will not be able to perform its obligations in the future, it may be that the consequence is that it is not unconscionable for the landlord to insist on its strict legal right.

…

[70] Further, in P Butt, Land Law (6th edition, 2010, Thomson Reuters) the learned author said (omitting reference to the authorities referred to in the footnotes upon which the principles were based):

[15223] Equity has long exercised a jurisdiction to relieve against forfeiture for breach of the covenant to pay rent. Equity looks on the landlord’s power of forfeiture for non-payment of rent as “security” for payment, not in the sense of conferring a charge or similar interest to secure repayment but rather in the sense of ensuring or bringing about payment. Provided that the rent is actually paid (even if late) and the landlord is compensated for any loss caused by the tenant’s default, then the “security” has served its purpose and the tenant ought to have the lease restored. The court can impose terms on the grant of relief against forfeiture. For example, in addition to requiring the tenant to pay all arrears of rent, the court may require the successful tenant to pay the landlord’s costs of the proceedings and to arrange for future rent payments to be made by standing order with a bank …

(2020) 19 BPR 40,443 at 40454

[15224] Courts normally relieve against forfeiture for non-payment of rent. Provided the landlord is compensated for all arrears of rent and any loss arising from the non-payment, the tenant will generally succeed in having the lease restored. This is particularly so where the tenant stands to lose a valuable lease for a relatively trivial breach: a concept akin to “proportionality” requires that the lease be reinstated …

In line with this principle, a history of tardy payment is not of itself grounds for refusing relief against forfeiture. Nevertheless, the tenant is not entitled to relief as of right. The court retains the discretion, and in exceptional cases relief will be denied … It has also been denied where the grant of relief would injure third parties who have since acquired rights over the property in ignorance of the tenant’s claim …

[15225] Relief generally will be refused where the tenant is hopelessly insolvent, for in such a case an order reinstating the lease would be futile. This is so even though the tenant is able to pay the arrears of rent at the time of the proceedings, because the court is entitled to take into account the improbability that rent will be paid in the future, or that its payment may be a preference for creditors. But where the tenant’s financial position was not “hopeless”, and the tenant has entered into a scheme of arrangement with creditors to try to trade out of its difficulties, relief was granted on payment of arrears to date. Likewise, relief was granted where the tenant’s financial difficulties were due solely to the initial costs of establishing its business on the premises, or poor management practices that had since been improved, or where it was feasible that the tenant’s financial predicament would be solved by sale of the business which the tenant conducted on the premises. Relief is unlikely to be refused where the lease provides for a guarantee or bond to cover the tenant’s obligation to pay rent."

43. Having regard to these principles, there would appear to prima facie be a basis for the plaintiffs to obtain relief against forfeiture.

44. The only relevant breach concerns payment of rent. Whilst the bases for the non-payment of rent advanced by Mrs Conway as to the state of the premises appears on the evidence to be somewhat exaggerated, any arrears determined to be due could, on the evidence, be made good and the rent paid on an ongoing basis.

45. This reasoning proceeds upon the basis that the plaintiffs clearly have a capacity to repay unpaid rent and to continue paying the rent charged. Furthermore, I have had regard to a concession made by senior counsel for the plaintiffs, they would be prepared to pay the whole sum of the rent due rather than a portion of the sum due and the balance being paid into court in order to obtain relief against forfeiture. That concession is instrumental in my consideration of the question of relief against forfeiture.

46. The defendant advanced a number of propositions against the court finding a serious question to be tried with respect to this issue, as follows:

1. The plaintiffs did not plead in the Amended Summons the basis for relief against forfeiture but left that issue pending the resolution of the application for interim relief.

2. The defendants have a lease in the form of the Agreement. There is a large debt that has arisen because the plaintiffs have decided to take a “self-help remedy before any determination of their claim for abatement of rent”. The abatement of rent they seek is to zero, or alternatively, some other amount. This is not a case where the defendants have sought to unfairly exploit a legal position. It is the plaintiffs that are the agitators.

3. There is a logical difficulty with the plaintiff’s position which amounts to the defendants being kept out of their money by the plaintiffs making a claim in another jurisdiction. There is a jurisdiction available to ventilate their concerns and that is an appeal to the Appeal Division of the Tribunal with respect to the Tribunal orders.

4. The RTA squarely deals with the rights and procedures to be followed in the case of a dispute with respect to a residential tenancy agreement. It covers the field. There is a significant debate to be had about that proposition.

5. That difficulty is not overcome by reliance upon the obiter observations of Robb J in Kofoo at [13]. Particular attention was drawn to section 111 of the RTA which provides very broad powers to the Tribunal in relation to a dispute about a termination notice. The plaintiffs were served the Notice of Termination but chose not to avail themselves of the provisions of s 111 of the RTA.

47. I accept that the last two propositions excite some triable issues. However, I do not consider that observation results in a conclusion other than the plaintiffs have a prima facie case in this respect for the following reasons:

48. I have been informed there appears to be limited authority on the question raised by the defendants. Nonetheless, the decision of Robb J in Kofoo is at least suggestive of the relief against forfeiture in the case of a residential lease. His Honour observed at [134] as follows:

“[134] Uninstructed by authority I would incline to the view that no single formulation of the test for the requisite degree of confidence that the lessee will be able to pay rent in the future will adequately describe all situations. Perhaps, if the issue is whether relief against forfeiture should be granted in relation to a residential lease upon which a lessee and his or her family is dependent for accommodation, the court might not be stringent in what it requires to be satisfied that the lessee will most probably be able to pay the rent on time for the balance of the term of the lease. However, in the present commercial context, that approach is not very attractive. Why should it be that the court should grant relief against forfeiture to a commercial lessee, where the lessee is not hopelessly insolvent, but the capacity of the lessee to pay rent in the future will depend upon a wing and a prayer? In this context Campbell J's formulation of the test is the more attractive.”

49. Further, there is some real force in the plaintiffs’ submissions that the judgment of Kirby P in Minister for Lands & Forests v McPherson (1991) 22 NSWLR 687; (1991) NSW ConvR 55-573 would raise doubts about the proposition advanced by the defendants in this respect.

50. Kirby P described the matter before him as an appeal concerning the availability of equitable relief against forfeiture in the case of an interest in a statutory lease under the Western Lands Act 1901 (NSW). His Honour observed that it was necessary to explore the operation of the long established and beneficial equitable relief in the context of a comprehensive statutory system of leases (at 688).

51. Kirby P made the following observations about relief against forfeiture (at 691-692):

“In Crabb v Arun District Council [1976] Ch 179 at 187, Lord Denning MR described how “Equity comes in, true to form, to mitigate the rigours of strict law”. In the same case Lord Scarman (at 193) spoke of the “eternal credit” due to equity which, in the law of England, had developed “an immensely flexible, yet perfectly clear, doctrine”. One aspect of that doctrine was the relief, long given by courts of equity, against legal provisions resulting in the forfeiture of a proprietary interest. In exercising its jurisdiction, equity “controlled the excesses of the common law”: see R P Meagher, W M C Gummow, J R F Lehane, Equity Doctrines and Remedies, 2nd ed (1984) at 418. This form of relief brought into focus “the antithetical attitude of equity and the common law”. It rested, ultimately, on the notion “that a person should not use his legal rights to take advantage of another's misfortune”: see ibid at 418.

The availability of relief against the forfeiture of leasehold interests was considered by the House of Lords in Shiloh Spinners Ltd v Harding [1973] AC 691. Lord Wilberforce (at 722) said of this form of relief:

“There cannot be any doubt that from the earliest times courts of equity have asserted the right to relieve against the forfeiture of property. The jurisdiction has not been confined to any particular type of case. The commonest instances concern mortgages, giving rise to the equity of redemption, and leases, which commonly contained re-entry clauses; but other instances are found in relation to copyholds, or where the forfeiture was in the nature of a penalty. Although the principle is well established, there has undoubtedly been some fluctuation of authority as to the self-limitation to be imposed or accepted on this power…”

…

Statutory provisions and general equitable principles

It is the presumption of our legal system that Acts of Parliament are intended to operate justly. Where, then, a statute is silent as to procedures which are to be followed or basic rights observed, the assumption is made, and enforced by the courts, that the statute was intended to operate alongside and in harmony with the common law. The vivid expression of this presumption, oft-cited, is that of Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB NS 180 at 194-195; 143 ER 414 at 420. Byles J there said in a passage not always quoted in full:

“… a long course of decisions, beginning with Dr Bentley's case (The King v The Chancellor & C, of Cambridge, 1 Stra 557, 2 Ld Raym 1334, Mod 148, Fortescue, 202), and ending with some very recent cases, establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr Justice Fortescue in Dr Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says: ‘The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where are thou? Hast thou not eaten of the tree thereof I commanded thee that thou shouldest not eat?” And the same question was put to Eve also’.”

In a sense, Cooper asserts that, in fundamental matters of justice, the legal system will impute to Parliament an intention to respect and conform to basic rights. This is a presumption frequently applied in the High Court of Australia and in this Court in respect of basic principles of the common law: see, eg, Commissioner of Police v Tanos (1958) 98 CLR 383 at 395; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109; Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239 at 246; Johns v Release on Licence Board (1987) 9 NSWLR 103; Macksville and District Hospital v Mayze (1987) 10 NSWLR 708; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 and Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386 at 402.

Many cases, especially of late, demonstrate, both in the High Court and in this Court, the strength of the presumption that basic common law rules endure, notwithstanding statutory provisions which, on a superficial impression, might be thought to have replaced them. Thus in Lisafa Holdings, the Court held that the mere fact that the statute had provided a right of appeal and a statutory right to seek rescission of a decision under challenge was not conclusive of the exclusion of the rules of procedural fairness. The list of applications of the principle in Australian and other courts collected, in Lisafa Holdings (at 14), demonstrates the stringent approach to be applied. Since that decision was handed down, the High Court of Australia has, in the context of common law rules protecting basic rights, renewed its clear instruction. Parliament can derogate from such basic rights, provided to do so is otherwise within its legislative competence. But it must do so clearly, either by express language or inference which is “unambiguously clear”: see Twist (at 109); see, also, now Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652 and Balog v Independent Commission Against Corruption (1990) 169 CLR 625. In the last citation, the joint reasons (1991) 22 NSWLR 687 at 700 of the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ), with reference to numerous recent cases on the same point, say (at 635-636):

“Whilst in our view the conclusions which we have expressed flow from the application to the Act of the ordinary principles of interpretation, we would add the following observations lest we be thought to have taken an unduly restrictive view of the Commission's functions. Although the pernicious practices at which the Act is aimed no doubt call for strong measures, it is obvious that the Commission is invested with considerable coercive powers which may be exercised in disregard of basic protections otherwise afforded by the common law. Were the functions of the Commission to extend to the making of findings, which are bound to become public, that an individual was or may have been guilty of corrupt or criminal conduct, there would plainly be a risk of damage to that person's reputation and of prejudice in any criminal proceedings which might follow. If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where the alternative constructions of legislation are open, that which is consonant with the common law is to be preferred.”

There are many other analogous principles in the common law, as for example the presumption of a “defence” of an honest and reasonable mistake in statutes creating a criminal offence: see Proudman v Dayman (1941) 67 CLR 536 at 540 and He Kaw Teh v The Queen (1985) 157 CLR 523 at 527. It is unnecessary to extend this demonstration.

Does a similar principle apply in relation to basic principles of equity, where those principles have been developed over the centuries to safeguard the achievement of justice in particular cases where the assertion of legal rights, according to their letter, would be unconscionable?

In principle, there would seem to be no reason why a similar approach should not be taken to basic rules of equity. The justice of equity may equally supply the omission of the legislature, filling the silences of the statute.”

52. There appears to me to be at least a serious question to be tried that the availability of a relief against forfeiture is available to the plaintiffs in this case, notwithstanding the statutory scheme under the RTA. This is particularly so in circumstances where the Agreement contains no provision in relation to relief against forfeiture.

53. Further, reference may be made to the extract from the book by Butt P, Land Law, referred to Kofoo at [113], as follows:

“[15223] Equity has long exercised a jurisdiction to relieve against forfeiture for breach of the covenant to pay rent. Equity looks on the landlord's power of forfeiture for non-payment of rent as "security" for payment, not in the sense of conferring a charge or similar interest to secure repayment but rather in the sense of ensuring or bringing about payment. Provided that the rent is actually paid (even if late) and the landlord is compensated for any loss caused by the tenant's default, then the "security" has served its purpose and the tenant ought to have the lease restored.”

54. This conclusion is also relevant to the application for interlocutory relief.

WHETHER DAMAGES ARE AN ADEQUATE REMEDY AND BALANCE OF CONVENIENCE

55. The defendants’ contentions in this respect may be summarised as follows.

56. First, apart from NCAT, no other jurisdiction is empowered to make a termination order in relation to a residential residency.

57. Secondly, the plaintiffs have available to them the making of an application to dispute the Notice of Termination pursuant to s 111 of the RTA.

58. Thirdly, in any event, an appeal lies to an Appeal Panel of the Tribunal in relation to the Tribunal orders.

59. Fourthly, the Appeal Panel has a full suite of powers to determine every aspect of the issues the plaintiffs sought to ventilate in this Court, including the power to stay the Tribunal orders.

60. Fifthly, the plaintiffs chose not to exercise that right but rather came to this Court to seek relief by way of judicial review. The proceedings are in substance, creating a de facto appeal on a ground of law.

61. Sixthly, there can be no doubt this is a conscious strategy by the plaintiffs because both of them are legal practitioners experienced in litigation.

62. Seventhly, the defendant submitted that abundant case law makes clear the well settled position that this Court will ordinarily not exercise its discretion to exercise powers of judicial review over a first instance decision where an appeal avenue already exists, particularly in a specialist tribunal such as the NCAT, because, even if the Court ultimately disagrees with the first instance decision, it is well established that the only power it has is to remit the matter back to the original jurisdiction for rehearing: Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531; [2010] HCA 1 at [110].

63. Mr E Young of counsel referred to a number of authorities of this Court in support of the seventh proposition. His submissions as to those principles were uncontroversial in the proceedings and, in my view, correct. I set out the submissions as to relevant principles below.

“[22] This Court has repeatedly re-affirmed the approach taken by Kirby P ( as he then was) in the seminal case of Ballam v Higgins (1986) 17 IR 131 at 132, where he held that:

"Where a provision is made by Parliament for an internal appeals system in a specialised tribunal and where an internal appeal permits the agitation and determination of the questions of jurisdiction, I am of the view that normally this Court should, in the first instance, leave it to those internal processes to correct a suggested error of jurisdiction before offering prerogative relief"

[23] In Ballam, Kirby P explained the considerations for this approach as follows (at 132):

"1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals ...

2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;

3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;

4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and

5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction."

…

[25] The approach explained by Kirby P in Ballam was affirmed by the Court of Appeal in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. In particular, where Sheller JA (agreeing with the other members of the Court) held that (at 523F):

"Once it is accepted that the claimant had a right of appeal to the Full Industrial Court there are powerful reasons, which the other members of the Court have explained, for this Court not to entertain this application for prerogative relief"

[26] Again, in Boral Gas, the Court of Appeal emphasised the need for this Court to respect to jurisdiction and appeal process of the Industrial Court. The same applies here.

[27] In NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559, Barrett J expressly noted (at 564[15]) the guidance provided by Ballam and Boral, and also noted at 565[18] the additional case of Weinel v Judge Parsons (1994) 62 SASR 501 where King CJ said (Prior and Perry JJ agreeing)"

"Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the disretion may be exercised to discourage the procedure from being so used' ( citations omitted).

[28] More recently, in Black v Hunter New England Health Service [2010] NSWSC 1252 Hulme J reviewed the various authorities in the issue, and held that:

"All of these decisions serve to confirm that the decision as to whether this Court will entertain an application for judicial review in circumstances where the plaintiff has available an alternative remedy, particularly one within a statutory scheme such as provided by the ADT Act, is discretionary. Nevertheless, the "normal" approach was described by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 as follows: ... " (quote omitted).

[29] Even more recently, in Johnston v Boyd [2023] NSWSC 194 Fagan J dismissed an application for judicial review of a cost assessment where the plaintiff had not applied to the Review Panel, noting (at [41]), inter alia, that the plaintiff there had the right to do so, it would be a specialist in that area of law, it would be able to address the merits of the issues and been more economical and efficient than applying to the Supreme Court by way of a Summons.”

64. Eighthly, by way of elaboration of the seventh contention, the defendant submitted that this was a case similar to Ballam v Higgins (1986) 17 IR 131 (“Ballam”) as a specialist tribunal had been granted a range of powers specifically to deal with residential tenancy disputes, and that the Tribunal had a superior range of remedies at its disposal than this Court. Even if this Court was to hear and determine the plaintiffs’ application for judicial review, and the plaintiffs were successful, the only remedy this Court could order would be to remit the matter back to the Tribunal, giving rise to the prospect of additional appeals.

65. Ninthly, the approach the plaintiffs would have this Court adopt is an exceptional and unusual one. There is no evidence before the Court warranting such an approach. Further, it is not appropriate for the plaintiffs to now, having contested and lost the case in the Tribunal, to approach a different forum to seek to obtain an alternative means of obtaining a different result. The usual approach is much more cost effective, namely, an appeal.

66. Tenthly, there is no reason why the plaintiffs could not move out of the premises into alternative equivalent accommodation. They have simply chosen not to do so. The evidence disclosed alternatives available to them and demonstrated the incorrectness of the plaintiffs' asserted evidence that there is no such alternative available to them, despite their claimed efforts to locate such an alternative.

67. By supplementation to this tenth contention, the defendants contended that the evidence demonstrated that there was an abundance of alternative accommodation available to the plaintiffs, equivalent to (and possibly superior to) the premises for similar rent (being 4 and 5 bedroom residences, with rents both below and above the present rent for the premises, which from 1 July 2025 was $5,500 per week).

68. Mrs Conway’s second affidavit responding to the Xu affidavit actually supported the defendants’ position in relation to the termination and weighs against the balance of convenience of a stay on the orders of the Tribunal for two reasons:

1. her evidence demonstrated “the pickiness of the plaintiffs in relation to the perfection they apparently expect of properties”;

2. her evidence demonstrated that two of the houses they inspected in the very same suburb, but rejected for various imperfections, are still commanding high rents of $6,000 and $4,250 per week.

69. Eleventhly, it follows that damages will be a sufficient remedy if the plaintiffs are ultimately successful in their District Court case.

70. Lastly, the defendants contended that the plaintiffs have not demonstrated anything extraordinary in their case.

71. For the purpose of addressing these issues, I accept the legal principles outlined by counsel for the defendants as to the exercise of the Court’s discretion, which I have extracted above.

72. There is also merit in the submission advanced on behalf of the defendants that the Tribunal had a power to make a termination order in relation to a residential tenancy resides in the Tribunal and that the plaintiffs have available to them an appeal from the orders of the Tribunal to an Appeal Panel of the Tribunal.

73. In broad terms, I accept the submission advanced by the defendants that those matters represent discretionary factors in favour of refusing the interim relief sought by the plaintiffs.

74. However, I do not consider that the defendants are correct to submit, in the context of these proceedings, that the Tribunal has “a full suite of powers to determine every aspect of the issues” the plaintiffs seek to raise in this Court.

75. Whilst it is true that the Appeal Panel of the Tribunal has a substantive power to set aside the orders of the Tribunal and to stay those orders pending appeal, the Tribunal does not have the power to deal with the question of relief against forfeiture which, in my view, is also applicable to the consideration of the interlocutory relief sought by the plaintiffs.

76. Further, whilst I accept the submission of the defendants that the grant of relief to the plaintiffs in judicial review in this matter the Court would be confined to remitting the matter back to the Tribunal, it must be acknowledged that the sole issue raised for judicial review is the jurisdiction of the Tribunal. It follows that a determination of that question by this Court must be ultimately determinative of that question before the Tribunal, notwithstanding that there may be a remitter to the Tribunal to determine the question of jurisdiction in accordance with the law as stated by this Court. I do not accept the prospect of numerous appeals in this Court is a realistic proposition.

77. The question of alternative accommodation ultimately requires the Court to consider the untested evidence of Mr Xu and Mrs Conway.

78. I do not doubt that Mrs Conway genuinely holds the belief that the alternative accommodation which has been identified in the immediate area to the premises is unsuitable for her family. However, I do have some doubts as to whether that opinion can be entirely objectively validated.

79. Whilst the properties in question have suffered from the fact that they were fully furnished or only for a short term lease, the more general proposition advanced by the plaintiffs that the properties were unsittable for their family needs to be approached quite cautiously as I agree with the submission of the defendants that the evidence does demonstrate “the pickiness of the plaintiffs in relation to the perfection they apparently expect of properties”. For example, Mr Fernon was driven to arguing in these proceedings that one property in Mosman was not suitable as there was a large non-working internal waterfall feature and a pit in the loungeroom which was a trip hazard. The property also suffered from having a water feeder that was non-functional for the whole duration of the lease.

CONCLUSION

80. Notwithstanding Mr Xu’s diligence in attempting to identify alternative rental properties said to be suitable for the plaintiffs, there is no escaping the fundamental consideration that the premises constitute the present home of the plaintiffs and their three teenage children. The eldest child is currently undertaking her HSC. All children attend school within walking distance of the home. This consideration also concerns whether damages are an adequate remedy.

81. Furthermore, on the evidence there appears to be some real issues with available alternative accommodation, notwithstanding the plaintiffs’ pedantry.

82. In those circumstances, the balance of convenience favours the plaintiffs.

83. When that consideration is combined with the prospect of relief from forfeiture, which I have found is a serious issue to be tried and is only available as a remedy in this Court, in my view, the plaintiffs have demonstrated exceptional circumstances which would warrant departure from the principles stated in Ballam and the other line of authority referred to in the extract from the defendants’ submissions above.

84. The above discussion establishes, in my view, a proper basis to grant the relief sought by the plaintiffs, subject to conditions attached to the making of such orders.

85. Mrs Conway, in her evidence, stated that rent had been withheld given the claim for damages and the concern that the defendants may not have funds to meet the plaintiffs’ claim.

86. Reliance was placed upon the evidence of Mr Ellis. He opined that the issues associated with the property were such that the market rent was, at best, between $2,500 and $3,000 per week when the current rent was stipulated at $5,500.

87. The plaintiffs accepted, in that light, that for the period in which no rent is paid and ongoing until the dispute is determined, a sum of $3,000 per week would be paid to the defendants and the balance paid into Court.

88. Whilst the fixing of conditions upon any interim relief granted in this case is an appropriate course, I do not consider that the approach proposed by the plaintiffs is adequate.

89. I do not consider that Mr Ellis’ opinion may be treated as an expert opinion. He has not provided that opinion under the expert code of conduct. The opinion does not fully establish the foundations for the opinion expressed by him. His evidence has not been tested in those circumstances because the defendants received his evidence late and were not in a position to deal with the evidence other than by submissions. In my view, the Court should, on the present application, attach limited weight upon Mr Ellis’ opinion.

90. Further, the condition advanced by the plaintiffs is not sufficient, in my view, to obtain relief against forfeiture, even on an interim basis.

91. The proper resolution of those issues on the application for the stay is that the defendants should pay the entire sum of the rent for the period in which the rent or full rent was not paid and make ongoing payment of the rent.

Orders

92. The plaintiffs shall bring in Short Minutes of Order reflecting this decision within 24 hours of the publishing of this decision.

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Amendments

29 September 2025 - 29 September 2025 - Paragraph [1] - removed reference to address.

Decision last updated: 29 September 2025