Hawkins v Wimbledon 1963 Pty Ltd

[2024] NSWSC 1465

Supreme Court

New South Wales

Medium Neutral Citation:

Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465

Hearing dates:

On the papers

Date of orders:

19 November 2024

Decision date:

19 November 2024

Jurisdiction:

Common Law

Before:

Griffiths AJA

Decision:

1. Grant an extension of time to permit the plaintiff to rely upon the amended summons filed 27 February 2024.

2. Set aside orders 1, 2 and 3 dated 11 April 2023 by the NSW Civil and Administrative Tribunal.

3. Set aside orders 6, 7 and 8 dated 18 May 2023 by the NSW Civil and Administrative Tribunal, including that part of the chapeau to the 18 May 2023 orders which states that they are “in full and final settlement of the application”.

4. Set aside the NSW Civil and Administrative Tribunal certificate dated 19 June 2023 in proceeding RT 23/12547.

5. Set aside the Local Court Judgment dated 30 June 2023.

6. Set aside the order made on 30 August 2023 by the NSW Civil and Administrative Tribunal.

7. Remit matters RT 23/12547 and RT 23/22334 to the NSW Civil and Administrative Tribunal for reconsideration according to law.

8. The first defendant pay the plaintiff’s costs.

Catchwords:

ADMINISTRATIVE LAW — judicial review — review of orders made by NCAT under s 187 of the Residential Tenancies Act 2010 (NSW) — whether Court should exercise its discretion to conduct judicial review where an alternative remedy is available — whether NCAT made orders in excess of power — where money orders exceeded the monetary limit imposed on NCAT — significance of the fact that the impugned orders were made by consent — whether Local Court Judgment based on NCAT orders should also be set aside

Legislation Cited:

Civil and Administrative Tribunal Act 2008 (ACT), s 18

Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 28, 29, 34, 59, 78, 80, 81, 83, Sch 4 cll 3, 5

Corporations Act 2001 (Cth), ss 9, 9AC, 9AD

District Court Act 1973 (NSW), ss 9, 44, 48

Local Court Act 2007 (NSW) ss 29, 30, 31, 39, 40

Residential Tenancies Act 1987 (NSW), s 85

Residential Tenancies Act 1997 (Vic), s 447

Residential Tenancies Act 2010 (NSW), ss 3, 6, 7, 8, 13, 44, 52, 63, 70, 119, 187

Residential Tenancies Regulation 2019 (NSW), reg 40

Residential Tenancies Tribunal Act 1986 (NSW), s 19

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 59.10

Cases Cited:

Bridgford v Brien [2017] NSWCATAP 111

Commissioner of Police New South Wales v Gray (2009) 74 NSWLR 1; [2009] NSWCA 49

Corcoran v Far [2019] NSWSC 1284

Ehrenfeld v Choy & Anor [2006] NSWSC 1092

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Healthcare Complaints Commission v Robinson [2022] NSWCA 164

Nunez v Sampson [2022] NSWCATAP 125

Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40

The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341

Thomas v Godbolt [2021] NSWCATAP 318

Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284

Texts Cited:

A Anforth, P Christensen and C Adkins, Residential Tenancies Law and Practice in NSW (8th ed, 2022, The Federation Press)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986

Ritchie’s Uniform Civil Procedure NSW (2005, LexisNexis) (loose-leaf service)

Category:

Principal judgment

Parties:

David Hawkins (Plaintiff)
Wimbledon 1963 Pty Limited (First Defendant)
NSW Civil & Administrative Tribunal Consumer and Commercial Division (Second Defendant)
NSW Local Court Waverley (Third Defendant)

Representation:

Counsel:
D Hawkins (In person)
R Sud (First Defendant)

Solicitors:
Storey & Gough Lawyers (First Defendant)

File Number(s):

2023/277234

Publication restriction:

Nil

 Decision under review 

Court or tribunal:

NSW Civil and Administrative Tribunal (Consumer and Commercial Division);
Local Court of New South Wales

Date of Decision:

NCAT: 11 April 2023, 18 May 2023, 30 August 2023;
Local Court: 30 June 2023

Before:

NCAT: S Foda (11 April 2023), P Thew (18 May 2023), M Eftimiou (30 August 2023);
Local Court: Registrar (30 June 2023)

File Number(s):

NCAT: RT 23/12547, RT 23/22334, RT 23/34574;
Local Court: 2023/210172

JUDGMENT

Introduction and background matters

1. By an amended summons filed on 27 February 2024, the plaintiff (Mr Hawkins) seeks various relief relating to proceedings in both the NSW Civil and Administrative Tribunal (NCAT) and the Local Court.

2. In brief, the proceedings relate to a dispute between Mr Hawkins and the first defendant (Landlord), which leased a residential property to him. The rent was in excess of $15,000 per month. Mr Hawkins fell behind in paying the rent. He contended that the Landlord was delinquent in remedying multiple defects with the property. The Landlord commenced proceedings in NCAT in April 2023 seeking possession of the property and payment of rental arrears (RT 23/12547). Neither party adduced in evidence in this Court either a copy of the Landlord’s application to NCAT or the subject residential tenancy agreement. That is unfortunate. It is evident, however, from the transcript of the NCAT hearing on 11 April 2023 in respect of that application that, under that agreement, Mr Hawkins was required to pay monthly rent in the amount of $15,208.50, the rental arrears claimed by the Landlord were in the total amount of $29,208.65, the arrears period was 56 days and Mr Hawkins claimed that he had an off-set which would exceed the total amount of the claimed rental arrears.

3. On 10 April 2023, Mr Hawkins filed a reply to the Landlord’s application, in which he alleged various defects with the property. As noted above, on 11 April 2023, the Landlord’s application came before the Tribunal. More will be said about that hearing later.

4. On 15 May 2023, Mr Hawkins lodged with NCAT an application which was given the file number RT 23/22334. In that application (a copy of which was adduced in evidence), Mr Hawkins sought compensation in the amount of approximately $45,000 (representing a 50% reduction of rent) having regard to identified defects with the property. He sought an order that the rent payable was excessive, as well as an order reducing the rent payable because the property was unusable, uninhabitable or destroyed.

5. Mr Hawkins contends that this application, which he describes as an off-setting claim, remains to be heard and determined by NCAT. In contrast, the Landlord contends that the application was disposed of as a result of consent orders made by NCAT on 18 May 2023.

6. On both 11 April 2023 and 18 May 2023, NCAT made orders which are expressly stated to be by consent. Mr Hawkins now challenges whether the orders were made by consent.

7. Mr Hawkins also challenges orders 1, 2 and 3 made on 11 April 2023 (as well as orders 6, 7 and 8 made on 18 May 2023) on the basis that orders 1, 2 and 3 are beyond NCAT’s jurisdiction because each is in an amount in excess of $15,000. Order 1 made on 11 April 2023 requires Mr Hawkins to pay the Landlord $29,208.65 for rent owed concerning the period 15 February 2023 to 11 April 2023; order 2 is in the same amount and is said to relate to “rent and water” (apparently there was no water usage amount outstanding as at 11 April 2023); order 3 requires Mr Hawkins to pay the Landlord $15,208.50, with the next payment due on 26 April 2023, and, once the rental arrears are paid in full, to pay rent in accordance with the residential tenancy agreement (under which Mr Hawkins was to pay monthly rent in the amount of $15,208.50, payable on the 15th day of each month).

8. Each of the amounts the subject of those three orders appears to exceed the monetary limit of NCAT’s power to make orders, being $15,000 where the order is otherwise than with respect to a rental bond (in which latter case, the limit is $30,000: see [81] below).

9. Order 6 made on 18 May 2023 requires Mr Hawkins to pay the sum of $15,000 for rental arrears from 12 April 2023 to 11 May 2023; order 7 requires him to pay the Landlord $3,500.37 for rental arrears from 12 May 2023 to 18 May 2023; order 8 requires him to pay $29,208.65 for rental arrears from 15 February 2023 to 11 April 2023. The amount specified in order 8 mirrored the amount in both orders 1 and 2 made previously on 11 April 2023 and effectively subsumed and replaced those earlier orders.

10. In mid-June 2023, Mr Hawkins vacated the rental property.

11. On 19 June 2023, the Landlord obtained a certificate under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) in respect of the NCAT money payment orders dated 18 May 2023. The certificate did not refer explicitly to any of the orders made on 11 April 2023. This certificate was then filed with the registrar of the Local Court under s 78(3) of the CAT Act. The Local Court gave judgment on 30 June 2023 in the total amount of $47,911.02 (which represents the total sum of NCAT’s orders 6, 7 and 8 made on 18 May 2023, plus filing fees) (Local Court Judgment). By a letter dated 3 July 2023, the Local Court issued a Notice of Orders made on 30 June 2023.

12. On 25 July 2023, Mr Hawkins filed a Notice of Motion in the Local Court seeking to have the Local Court Judgment set aside on the basis that there was no NCAT order in the amount of $47,709.02 and, even if there were, it would be ultra vires and unenforceable because it exceeded the $15,000 monetary limit. On 7 August 2023, the Local Court Registrar dismissed Mr Hawkins’ Motion on the ground that the Local Court lacked jurisdiction.

13. Mr Hawkins now seeks to set aside the Local Court Judgment and the NCAT orders dated 11 April and 18 May 2023.

14. On 27 July 2023, Mr Hawkins filed an application with NCAT to reinstate the RT 23/22334 proceedings. The application was dismissed on 30 August 2023 on the basis that the reinstatement application was not made within the stipulated time period of 7 days and an application to extend time was refused.

15. Mr Hawkins relies on an affidavit by him dated 17 August 2023. The Landlord relies upon an affidavit by Rosario Russo filed 17 October 2024.

16. When the matter was listed for directions in this Court on 17 October 2024, Mr Hawkins sought to have the hearing vacated. After the Court raised with the parties the possibility of the matter being heard and determined on the papers and without an oral hearing, the parties agreed with this course. Accordingly, orders were made on 17 October 2024 for the filing and service of written submissions in chief, in response and in reply. I have taken into account those submissions, together with the evidence described above as well as additional material provided recently by Mr Hawkins on 4 November 2024 (see at [35]-[36] below).

17. It is convenient first to address this Court’s jurisdiction to hear and determine Mr Hawkins’ amended summons (noting that while both the Local Court and NCAT were named as parties, neither had an active role in these proceedings).

Consideration and determination

(a) Supreme Court’s jurisdiction

18. Mr Hawkins has not in his amended summons or supporting material identified this Court’s jurisdiction to grant the relief he seeks. The Landlord suggests that Mr Hawkins may be relying on r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in seeking to have the Local Court Judgment set aside.

19. This rule states as follows:

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

20. As is evident from its terms, this rule has no application here. That is because the rule applies where an application is made to the Court in which a judgment or order has been given or entered. Thus any such application under this rule could only be made in the Local Court and not this Court.

21. Alternatively, Mr Hawkins may be relying upon the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) (indeed, this appears to be the only jurisdictional basis for the amended summons). Assuming that is so, consideration must be given to the Court’s discretion to refuse to grant relief in the exercise of that jurisdiction because of the availability of an adequate alternative remedy.

22. Mr Hawkins has a right of appeal from decisions of the General Division of the Local Court, but only on a question of law (Local Court Act 2007 (NSW), s 39(1)). He may also seek leave to appeal on a question of mixed law or fact (Local Court Act, s 40(1)). He has not sought to rely on these processes and, in any event, he would need to obtain an extension of time to bring any such proceeding.

23. Mr Hawkins’ challenge to the lawfulness of NCAT’s orders dated 11 April and 18 May 2023 may also rely on this Court’s supervisory jurisdiction. The availability of an adequate alternative remedy is also relevant in this context. Section 34(1) of the CAT Act provides:

34 Inter-relationship between Tribunal and Supreme Court

(1) The Supreme Court may—

(a) refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or

(b) refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or

(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.

…

24. In making the orders on 11 April and 18 May 2023 NCAT was exercising the jurisdiction conferred upon it by cl 3 of Sch 4 of the CAT Act in relation to the Residential Tenancies Act 2010 (NSW). Mr Hawkins had a right of appeal to an Appeal Panel from both those sets of orders, having regard to s 80 of the CAT Act. If the Tribunal’s decision to make the orders it did on 11 April 2023 was an interlocutory decision within the meaning of that expression in s 4 of the CAT Act (see Healthcare Complaints Commission v Robinson [2022] NSWCA 164 at [18] and [73]) and, in particular, s 4(i), he would need to obtain the leave of the Appeal Panel (CAT Act, s 80(2)(a)). If the decision was an “ancillary” or final decision, he had a right of appeal to an Appeal Panel on any question of law and, with the leave of the Appeal Panel, on any other grounds (s 80(2)(b)). An “ancillary” decision is defined in s 4 of the CAT Act.

25. In the event that an Appeal Panel made a decision in an internal appeal which was adverse to Mr Hawkins, he had a statutory right to appeal to this Court on a question of law with the leave of the Court (CAT Act, s 83(1)). As the Landlord contended in the present proceeding, an Appeal Panel has broader powers in an internal appeal under the CAT Act than is the case where this Court is exercising its supervisory jurisdiction under s 69 of the Supreme Court Act. In an internal appeal, an Appeal Panel could decide to deal with the appeal by way of a new hearing if it considered that the grounds of appeal warranted such a course, and could permit fresh evidence to be given if it considered that to be appropriate in the circumstances (CAT Act, s 80(3)). An Appeal Panel would also have the power, if it considered it appropriate, to set aside the first instance decision and substitute its own decision (CAT Act, s 81(1)(d)). In contrast, this Court cannot ordinarily substitute its decision on judicial review and will generally set the decision aside and remit it for reconsideration in the event that a reviewable error is established.

26. In the present proceeding, in urging the Court to decline to conduct a judicial review of NCAT’s orders because there was adequate provision for an internal appeal by an Appeal Panel, the Landlord contended that it was prejudiced by Mr Hawkins’ decision not to appeal to an Appeal Panel. It contended that, had he done so, it could have sought an order that the orders dated 11 April 2023 be replaced by an order that Mr Hawkins pay $15,000. The Landlord said that this option was not available to it in the present proceeding, because the Court’s power was limited to setting aside the Tribunal’s orders.

27. The Landlord’s contentions have some force. On balance, however, I consider this to be an unusual case and one where the Court should exercise its judicial review jurisdiction in respect of both the Local Court Judgment (which is based on the 18 May 2023 orders by NCAT) and the orders dated 11 April and 18 May 2023. The issues raised by Mr Hawkins concerning whether NCAT’s orders exceed the monetary limits on its jurisdiction involve an important question of legal principle which, as far as I am aware, has not previously been considered by this Court. It has been considered, but only cursorily, by two Appeal Panel decisions. Moreover, there is a third Appeal Panel decision (which was not referred to by either party) which casts some doubt on the correctness of the view expressed in the two earlier Appeal Panel decisions, about which more will be said shortly.

28. An example of another case where, despite the availability of alternative statutory appeal avenues, the Court exercised its judicial review jurisdiction is Commissioner of Police New South Wales v Gray (2009) 74 NSWLR 1; [2009] NSWCA 49. It concerned the question of the proper construction of s 29(3) of the Security Industry Act 1997 (NSW). McColl JA considered it was appropriate for the Court below to exercise judicial review jurisdiction in relation to that question, rather than requiring the appellant first to exhaust statutory appeal avenues in ss 113(2A) and 123 of the Administrative Decisions Tribunal Act1997 (NSW). At [128]-[129], her Honour said (emphasis added):

[128] However, this Court must also consider whether, having found error of law, it should grant relief having regard to the alternative avenue for appeal which was open to the appellant. In my view it should. While there is a sensible rule, reflected in s 123 of the Administrative Decisions Tribunal Act, not to grant discretionary relief in the nature of the prerogative writs where the facility of internal appeal has not been utilised, “the rule is neither inflexible nor universal [but] simply a sensible principle of restraint, allowing for the efficient and proper use of judicial time and of the remedies involved”: Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239 at 248, per Kirby P; approved Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 at [13], per Priestley JA (with whom Mason P and Stein JA agreed).

[129] The case raised an important question of principle on which Members of the Tribunal are divided. It concerned the construction of legislation not hitherto considered by this Court. It was, in my view, appropriate for the appellant to seek to have the issue of the proper construction of s 29(3) determined by this Court rather than require him first to exhaust the avenue of seeking leave to appeal pursuant to s 113(2A) of the Administrative Decisions Tribunal Act. That the respondent apparently concurred in that course, in return for a potential costs benefit, provides some small support to recognising that it is appropriate.

29. In circumstances where it is appropriate for this Court to hear and determine Mr Hawkins’ claims that some of NCAT’s orders were made beyond its lawful powers, I consider it also appropriate to conduct a judicial review of the Local Court Judgment (which was based on the 18 May 2023 orders) as well as Mr Hawkins’ other claims concerning the lawfulness of NCAT’s orders dated 11 April and 18 May 2023.

29. The Landlord did not contend that Mr Hawkins required an extension of time to bring judicial review proceedings. His originating summons was filed on 31 August 2023. For completeness, and to enable Mr Hawkins’ challenges to be heard together, I would grant an extension of time in respect of prayers 2 and 3 of the amended summons, which relate to the NCAT orders and their enforcement (see UCPR, r 59.10(1)).

(b) Local Court Judgment dated 30 June 2023

31. Mr Hawkins contends that the Local Court Judgment dated 30 June 2023 should be set aside because it was obtained irregularly or unlawfully on the following two bases:

1. the judgment certified NCAT orders which were made in excess of NCAT’s jurisdiction; and

2. the Local Court Judgment was obtained by a person (Ms Jianna Lidis, who is described as Head of Property Management at Trelease Associates), who is not a director or officer of the first defendant company.

32. Section 78 of the CAT Act provides a process for a party to recover any amount ordered to be paid by NCAT. The relevant amount must be certified by a registrar (s 78(1)) and the certificate must identify the person liable to pay the certified amount (s 78(2)). Subsection (3) then provides that any such certificate which is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate operates as such a judgment.

33. As to Mr Hawkins’ contention that the Local Court Judgment should be set aside because it certified orders which were made by NCAT in excess of its jurisdiction, I will address that contention in the next part of these reasons for judgment relating to Mr Hawkins’ challenges to NCAT’s orders.

34. The other basis advanced by Mr Hawkins for saying that the Local Court Judgment had been obtained irregularly or unlawfully relates to Mr Hawkins’ claim that the judgment was procured by Ms Lidis who, as noted above, was employed by the Landlord’s real estate agent, Trelease Associates. Ms Lidis appeared in the NCAT proceedings on behalf of the Landlord. In his affidavit dated 25 July 2023 in support of his Notice of Motion filed in the Local Court seeking to have the Local Court Judgment set aside, Mr Hawkins deposed that the Landlord had “by its managing agents Trelease Associates of Double Bay filed on-line proceedings” in the Local Court.

35. It is necessary now to refer to some material which was provided after it was determined by consent that the matter be heard on the papers. The Court contacted the parties and requested that a full copy of Mr Hawkins’ affidavit dated 25 July 2023 in the Local Court proceedings be made available, as the filed document seemed incomplete. On 4 November 2024, Mr Hawkins emailed my tipstaff and stated that he had now received from the Local Court a complete copy of his affidavit together with correspondence from the real estate agent regarding the judgment in the Local Court. Mr Hawkins attached an email dated 29 June 2023 from Trelease Associates to the Local Court which attached a document styled “Registration of Certificate of Order/Judgment”. The application is dated 27 June 2023 and states that “Ms Jianna Lidis (Head of Property Management)” is the contact person for Wimbledon 1963 Pty Ltd.

36. The material provided by Mr Hawkins on 4 November 2024 also included a copy of the Local Court’s file note dated 4 August 2023, which is said to relate to a Motion. Presumably that is a reference to Mr Hawkins’ Motion filed on 25 July 2023 in the Local Court seeking to set aside the Local Court Judgment dated 30 June 2023. That Motion was listed for hearing in the Local Court on 4 August 2023. In the file note, “Ms Jana [sic] Lidis” is recorded as appearing for Wimbledon 1963 Pty Ltd. She is described as “Director”.

37. After the parties were invited to indicate whether there was any objection to the Court relying upon this additional material, the Landlord said that, while it had no objection to the Court reviewing a complete copy of Mr Hawkins’ affidavit, it objected to the other material provided by Mr Hawkins on 4 November 2024. It described this material as “fresh evidence” which was provided to the Court outside the timetable for the provision of evidence and submissions. That objection should be rejected. The Landlord did not complain of any prejudice. This is hardly surprising in circumstances where the additional material simply confirms Mr Hawkins’ claim that Ms Lidis was responsible for procuring the Local Court Judgment. But that, of itself, does not make good Mr Hawkins’ challenge to the lawfulness of the Local Court Judgment.

38. Even if Ms Lidis was responsible for filing the NCAT certificate in the Local Court and procuring that Court’s judgment, it is difficult to see why her actions as the Landlord’s agent would render the Local Court Judgment unlawful.

39. Based on Mr Hawkins’ affidavit dated 17 August 2023, he appears to consider that Ms Lidis had no authority to commence any proceedings on behalf of the first defendant company if she was not a director or office-bearer of the company because of the operation of s 9 of the Corporations Act 2001 (Cth). Section 9 of the Corporations Act is a dictionary, which sets out multiple definitions. Mr Hawkins has not identified any particular definition in s 9 which supports his claims. I assume he refers to the definitions therein of “director” and “officer” which then refer to ss 9AC and 9AD respectively.

40. Ms Lidis did not need to be a director or office-bearer of the first defendant company to act as the company’s agent. As noted above, Ms Lidis appeared in NCAT as the company’s representative (or agent). It is evident that she also acted as the company’s representative (or agent) in obtaining the Local Court Judgment. Mr Hawkins has not identified any reason why she could not do so as the company’s agent.

41. For these reasons, I reject Mr Hawkins’ contention that the Local Court Judgment was obtained irregularly or unlawfully and should be set aside because it was procured by Ms Lidis.

42. That leaves to be determined, however, Mr Hawkins’ alternative contention that the Local Court Judgment was unlawful because it was based on a certificate issued by NCAT which was itself unlawful.

(c) NCAT’s orders dated 11 April and 18 May 2023

(i) Were the orders made by consent?

43. I will first address Mr Hawkins’ contentions that NCAT’s orders dated 11 April and 18 May 2023 should be set aside because they were not in fact consent orders.

44. It is necessary to summarise the history of the proceedings.

45. The transcript of the NCAT hearing dated 11 April 2023 (in which Ms Lidis is noted as appearing for the first defendant) records a discussion between the NCAT member and Mr Hawkins regarding the rental arrears. Mr Hawkins said that he was not familiar with the Tribunal’s processes and that he did not expect the Landlord’s application to be heard that day. He asked for a short adjournment to put on evidence concerning defects in the rented property. The Tribunal pointed out that Mr Hawkins needed to make an application if he wanted to raise an off-setting claim, a proposition which Mr Hawkins appeared to understand and accept.

46. Significantly, Mr Hawkins also told the Tribunal member that there had been “ongoing discussions” between the Landlord, the managing agent, and him concerning rental arrears. He said that, earlier that day, he had made an offer which still stands, namely that if the proceedings were adjourned and he did not pay the arrears in full by 26 April, then he would vacate the premises or put on “other material”. He then added that his intention “is to make the payment”.

47. After hearing from Ms Lidis, the Tribunal member told Mr Hawkins that if he wished to bring an off-setting claim he had to formulate an application. The member also indicated that if the parties were in agreement, an order could be made relating to the payment of rent. Mr Hawkins is recorded as saying that he did not have a problem with that proposed course of action. The Tribunal member then noted that the orders were by consent.

48. The orders dated 11 April 2023, made in proceedings RT 23/12547, are as follows (emphasis in original and omitting formal parts):

Applicant: WIMBLEDON 1963 PTY LTD

Respondent: DAVID HAWKINS

Pursuant to Section 63 of the NSW Civil and Administrative Tribunal Act 2013, orders published on 11-Apr-2023 are amended as follows:

On 11-Apr-2023 the following orders were made:

1. By consent, the tenant DAVID HAWKINS … is to pay the landlord, WIMBLEDON 1963 PTY LTD, C/- Trelease Associates Property Management … the sum of $29,208.65 for rent owed under the terms of the residential tenancy agreement for the period from 15-Feb-2023 to 11-Apr-2023.

The payment for rent owed is due on or before 26-Apr-2023.

Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately.

2. By consent, total amount for rent and water: $29,208.65.

3. By consent, the tenant is to pay WIMBLEDON 1963 PTY LTD rent, presently $15,208.50 per month, next payment due on the 26-Apr-2023, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement.

4. By consent, if the orders in respect of rent are not complied with then at any time before 26-Apr-2023 the landlord may request the re-listing of the application to determine whether the tenancy agreement should be terminated.

If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.

Note: The water usage obligation pursuant to the lease continues to run.

Oral Reasons Provided

49. It is unclear why these orders are stated to have been made pursuant to s 63 of the CAT Act. Under that provision, after a decision has been made, there is a power to correct an “obvious error” in the text of a notice of the decision. It is not evident why that power was exercised here. No copy of any other orders made earlier on 11 April 2023 was adduced in evidence before me.

50. In his affidavit dated 17 August 2023, Mr Hawkins deposed at [14] that he “agreed” to the 11 April 2023 orders. He added that his off-setting claim was still to be resolved and that the amount claimed there was more than the amount owed by him as per the 11 April 2023 orders.

51. Before describing the key events which occurred when the matter was relisted and subsequently came before a different Tribunal member on 18 May 2023, it should again be noted that earlier, on 15 May 2023, Mr Hawkins lodged his off-setting claim (RT 23/22334).

52. The transcript of the hearing in NCAT on 18 May 2023 (which states that the hearing related to both RT 23/12547, being the Landlord’s application, and RT 23/22334, being Mr Hawkins’ off-setting application) records Ms Lidis as again appearing for the Landlord. At the outset of the hearing, the member asked whether the parties had reached an agreement and orders could be made by consent, to which Ms Lidis replied affirmatively. Mr Hawkins is recorded as being present at the hearing. Ms Lidis is recorded as saying several times that Mr Hawkins had agreed to make rental payments under a payment plan, including paying $29,000 within 14 days. The Tribunal member asked Mr Hawkins whether he agreed that an order in the amount of $30,417 was the correct amount. He answered affirmatively. Putting to one side the rental arrears in the amount of $29,208.65 (which was the amount the subject of orders 1 and 2 dated 11 April 2023), the Tribunal member then sought to clarify what additional orders for payment of rental arrears were sought by the Landlord. The member calculated that figure to be $18,537 as the total rental arrears. The Tribunal member then said that he would break that amount up into two orders having regard to the Tribunal’s “maximum jurisdiction of $15,000 per order”. He added that it was “perfectly acceptable” to do so.

53. After further discussion, the member read out the orders which were stated to be “made by consent in full and final settlement of the application”.

54. Towards the end of the hearing, Mr Hawkins was asked by the member whether he had entered into the “arrangement” voluntarily, to which he answered affirmatively. He was then asked whether he understood the effect of the orders, to which he again answered affirmatively.

55. The Tribunal Member then concluded by stating that he had just made the orders and the transcript records the following matters:

Now, you wanted withdrawal of proceedings. (crosstalk) The proceedings are now dealt with, they’re disposed of. So it’s - it’s done. It’s done.

56. This strongly suggests that the orders were made on the basis that both proceedings between the parties were disposed of by the making of the consent orders.

57. The formal orders made by NCAT on 18 May 2023 in proceedings RT 23/12547 and RT 23/22334 are as follows:

Applicant: WIMBLEDON 1963 PTY LTD

Respondent: DAVID HAWKINS

On 18-May-2023 the following orders were made by consent and in full and final settlement of the application:

1. By consent, the Residential Tenancy Agreement is terminated in accordance with:

• s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement.

•  failure to pay rent in accordance with agreement.

2. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

3. By consent, the order for possession is suspended until 01-Jun-2023

4. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $500.01 per day from the day after the date of termination, namely 19-May-2023 until the date vacant possession is given to the landlord.

5. By consent, within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

6. By consent, the tenant, DAVID HAWKINS… is to pay the landlord, WIMBLEDON 1963 PTY LTD, C/- Trelease Associates Property Management … the sum of $15,000 on or before 01-Jun-2023 for rental arrears from 12 April 2023 to 11 May 2023.

7. By consent, the tenant, DAVID HAWKINS… is to pay the landlord, WIMBLEDON 1963 PTY LTD, C/- Trelease Associates Property Management … the sum of $3,500.37 on or before 01-Jun-2023 for rental arrears from 12 May 2023 to 18 May 2023.

8. By consent, the tenant, DAVID HAWKINS… is to pay the landlord, WIMBLEDON 1963 PTY LTD, C/- Trelease Associates Property Management … the sum of $29,208.65 on or before 01-Jun-2023 for rental arrears from 15 Feb 2023 to 11 April 2023, BEING AN AMOUNT ORDERED TO BE PAID BY THE TRIBUNAL UNDER ORDERS DATED 11 APRIL 2023.

THE TRIBUNAL NOTES THAT THIS IS A ‘PAY AND STAY’ ARRANGEMENT

If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.

58. The terms of these orders make no direct reference to Mr Hawkins’ off-setting claim as raised in his application RT 23/22334, but it is strongly arguable that it is encapsulated in the phrase “in full and final settlement of the application”. Further support for that view is provided by the Tribunal member’s concluding statements concerning “withdrawal of proceedings” and stating that the proceedings were “disposed of”, as well as the fact that the orders are stated to be in both proceedings.

59. In the light of the terms of NCAT’s orders and the passages from the transcripts referred to above, there is no doubt that the relevant orders were all recorded as having been made by consent. This strongly suggests that the orders were, in fact, made by consent.

60. Putting to one side the difficulties of having consent orders set aside after they have been entered in Court proceedings (as to which see, for example, The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 at [58]ff (per Beazley P, Leeming JA and Emmett AJA agreeing)), for NCAT’s orders by consent to be set aside Mr Hawkins would have to establish a ground which would suffice to render a simple contract void or voidable, including grounds such as illegality, misrepresentation, non-disclosure of a material fact, duress, mistake, undue influence, abuse of confidence etc (see Harvey v Phillips (1956) 95 CLR 235 at 243-244; [1956] HCA 27).

61. I did not understand Mr Hawkins to raise any of these grounds. Rather, his claim that he did not consent to the orders was put on the basis that he did not know about the nature and effect of the proceeding and lacked general knowledge about them. It is difficult to reconcile that claim with the affirmative answers he gave to the clear and direct questions put to him by the Tribunal member at the hearing on 18 May 2023 concerning him having entered the arrangements voluntarily and him understanding the effect of the orders.

62. Finally, reference should be made to s 59 of the CAT Act, which provides:

59 Powers when proceedings settled

(1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if—

(a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.

(2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.

63. On its face this provision appears to have some relevance to, at least, the orders made on 18 May 2023 which are expressly stated to be in “full and final settlement of the application”. But nothing more should be said about s 59 in circumstances where neither party made any reference to the provision or made any submissions about whether or not it was applicable to the circumstances here. It is unclear why no such reference or submission was made. It should be noted, however, that s 59 is consistent with the general law principle that the parties to a proceeding cannot by consent give a statutory decision-maker power which it does not otherwise have. (It may be noted that, in contrast with s 447(3) of the Residential Tenancies Act 1997 (Vic), the Residential Tenancies Act in NSW does not contain an express provision which permits the parties to agree to the tribunal making an order in excess of the stipulated monetary limit).

64. Hence, the more critical question is whether the impugned NCAT orders were made in excess of power, independently of the issue of consent.

65. For the above reasons, however, I do not accept Mr Hawkins’ claims that the NCAT orders were not by consent and should be set aside on that basis.

(ii) Were the NCAT orders made in “excess of jurisdiction”?

66. I will now address Mr Hawkins’ separate and more challenging contention that the NCAT orders were made in excess of jurisdiction (or, more correctly, power), where they require him to pay to the Landlord for rental arrears an amount which is in excess of $15,000 (as imposed by orders 1, 2 and 3 dated 11 April 2023 and order 8 dated 18 May 2023) and two amounts (as imposed by orders 6 and 7 dated 18 May 2023) which were consciously “broken up” by the Tribunal so as not to exceed the monetary limit of $15,000.

66. The resolution of this aspect of Mr Hawkins’ case is not straightforward. It requires a close examination of various statutory provisions in both the CAT Act and the Residential Tenancies Act pertaining to NCAT’s jurisdiction and powers. The resolution of this issue will also affect the lawfulness of the Local Court Judgment because it is based on the certificate relating to the 18 May 2023 orders.

67. Neither party provided any meaningful assistance to the Court on these complex issues. That may be understandable in the case of Mr Hawkins, who is a self-represented litigant. He was essentially content to rely on the terms of the legislative provisions which set monetary limits on the Tribunal’s jurisdiction, and, in particular, the limitation of $15,000 imposed by reg 40(b) of the Residential Tenancies Regulation 2019 (NSW), which applies to an order other than an order with respect to a rental bond (for which the limit is $30,000).

68. The Landlord’s written submissions on these issues were also relatively limited. Its primary position seemed to be that, in its discretion, the Court should decline to determine the issues because of the availability of alternative statutory remedies in the case of review of both NCAT’s orders and the Local Court Judgment. I have explained above why this course was not adopted.

69. In the event that the Court proceeded to determine the issues, the Landlord was largely content to refer to two decisions of the Appeal Panel which it contended provided “some support” for the Tribunal’s view that, although it could not make “an order” exceeding $15,000 in the circumstances here, it could make multiple orders as long as no single order exceeded $15,000 (referring to the transcript of the NCAT hearing on 18 May 2023).

70. I will address those two Appeal Panel decisions below. Two things should be said, however, at this juncture regarding the Landlord’s reliance on those decisions. First, although it is true that those decisions may provide “some support” for the approach taken by the Tribunal here, neither case contains any meaningful or substantive explanation as to why it is lawful for the Tribunal, when faced with a claim for rental arrears in a total which exceeds $15,000, to break up the claim and make separate orders not exceeding $15,000 in any single order.

71. Secondly, it should also be noted that the Landlord’s submission fails to confront the fact that, in its own terms, order 8 dated 18 May 2023 is in an amount of $29,208.65, which is almost double the monetary limit of $15,000. The same may be said about orders 1 and 2 dated 11 April 2023. Order 3 made that day in respect of the payment of future rent is also in excess of $15,000.

72. I turn now to address Mr Hawkins’ challenge to the lawfulness of the relevant orders in this case.

73. The statutory limits of the Tribunal’s powers in making orders in the circumstances of this case fall to be determined by an exercise of statutory construction. That task requires close consideration to be given to the text, context and purpose of the relevant provisions.

(A) The relevant legislative provisions summarised

75. Emphasis should be given at the outset to the significance of the distinction between “jurisdiction”, in the sense of power to decide, and “powers”, which are available to NCAT in a matter in which it has jurisdiction.

76. Section 28(1) of the CAT Act provides that NCAT has “such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation”. The Tribunal’s jurisdiction includes its “general jurisdiction” (s 28(2)(a)). The notion of the Tribunal’s general jurisdiction is then defined in s 29.

77. The schedules to the CAT Act allocate particular functions to various divisions of NCAT. Schedule 4 deals with the Consumer and Commercial Division of NCAT. The functions allocated to this Division of NCAT are set out in cl 3 of Sch 4. Subclause 3(1) states that the functions of the Tribunal in relation to various specified legislation, which includes the Residential Tenancies Act, are allocated to the Consumer and Commercial Division.

78. The Residential Tenancies Act does not apply to all residential tenancy arrangements. Rather, its application is identified in Div 2 of Pt 1. Section 6 provides that the Act applies to “residential tenancy agreements” in respect of “residential premises” whether made before or after the commencement of the section. Various premises are then identified in s 7 as being premises to which the Act does not apply and s 8 specifies various agreements to which the Act does not apply. None of those exclusions is relevant here.

79. A “residential tenancy agreement” is defined in s 13 as “an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence” (s 13(1)). “Residential premises” are defined in s 3(1) as meaning “any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence”.

80. It is common ground that the Landlord and Mr Hawkins had entered into a “residential tenancy agreement”. Thus their dispute in relation to that agreement was within the Tribunal’s jurisdiction, in relation to which it could exercise its functions (which includes its powers). This is because “function” is defined in s 4 of the CAT Act to include “a power, authority or duty, and exercise a function includes perform a duty” (emphasis in original).

81. NCAT’s general powers to make orders in proceedings under the Residential Tenancies Act are set out in s 187 of that Act, which relevantly provides (noting in particular that the Tribunal is expressly empowered to make “one or more” of the specified orders):

187 Orders that may be made by Tribunal

(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders—

(a) an order that restrains any action in breach of a residential tenancy agreement,

(b) an order that requires an action in performance of a residential tenancy agreement,

(c) an order for the payment of an amount of money,

(d) an order as to compensation,

(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,

(h) an order directing a landlord, landlord’s agent or tenant to comply with a requirement of this Act or the regulations,

(i) a termination order or an order for the possession of premises,

(j) an order directing a landlord or landlord’s agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.

(2) Without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for the following—

(a) loss of rent,

(b) any other breach of a residential tenancy agreement,

(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.

…

(4) The Tribunal must not make an order for—

(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

Note—

This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders, to declare that premises have been abandoned, to make orders about holding fees and to make various orders about rental bonds.

82. Section 187 is a troublesome provision in several respects, which I will elaborate on below.

83. The monetary limits of NCAT’s jurisdiction to make orders in proceedings under the Residential Tenancies Act is the subject of reg 40 of the Residential Tenancies Regulation, which provides:

40 Monetary limit of jurisdiction of Tribunal—s 187(4)(a) of Act

For the purposes of section 187(4)(a) of the Act, the amount prescribed is—

(a) if the order is with respect to a rental bond—$30,000, or

(b) otherwise—$15,000.

84. The wording of the heading of reg 40 is significant. It refers to the monetary limit “of jurisdiction” of the Tribunal. This provision is not a source of jurisdiction, but rather imposes a limit on the exercise of NCAT’s functions (which includes its powers) when it has jurisdiction in proceedings under the Residential Tenancies Act.

85. As confirmed in the Note to s 187, additional order-making powers to those specified in s 187(1) are conferred on the Tribunal, including specific powers to make termination orders (ss 108, 109, 111, 113 and 115); to declare that premises have been abandoned (ss 106 and 107); to make orders about holding fees (ss 24 and 25); and to make various orders about rental bonds (s 175). This list of additional order-making powers in the Note is not exhaustive. For example, it does not expressly refer to the Tribunal’s power in s 31 to make orders regarding disputes about condition reports.

86. Where the Tribunal has jurisdiction, its powers to make one or more orders under s 187(1) are enlivened either upon application by a landlord or tenant or other person under the Act, or in proceedings under the Act. It should also be noted, that unlike the position in other jurisdictions, the monetary limits on NCAT’s jurisdiction apply to the orders which NCAT is empowered to make, as opposed to an application which seeks the Tribunal to make one or more orders (contrast the Civil and Administrative Tribunal Act 2008 (ACT), s 18 and the Residential Tenancies Act 1997 (Vic), s 447(1)). Accordingly, an application which on its face seeks orders in excess of the monetary limit would not itself be invalid (see Ehrenfeld v Choy & Anor [2006] NSWSC 1092 at [46] per Grove J).

87. The prohibition imposed by s 187(4) on the Tribunal making “an order” for (a) payment of an amount which exceeds the amount (if any) proscribed by the regulations (the maximum amount), or (b) the performance of work or the taking of steps the cost of which is likely to or will exceed the maximum amount, applies not only to relevant orders made under s 187(1), but also orders made by the Tribunal under its additional order-making powers, having regard to the terms of the Note to s 187.

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 The 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).

90. Finally, there does not appear to be anything of substantial assistance in the extrinsic materials relating to the proper construction of s 187. There has, however, been a continuous legislative intention since at least 1986 to have disputes relating to residential tenancy agreements resolved in a relatively inexpensive, informal and speedy fashion, subject to monetary limits. That was the stated intention in 1986 when the Residential Tenancies Tribunal Act 1986 (NSW) was enacted (see the second reading speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986 at 2054)). Section 19 of that Act reflected some of the features of s 187 of the current legislation, including the conferral of power on the then Residential Tenancies Tribunal to make one or more specified orders (including an order requiring a party to the proceedings to pay an amount of money) and setting a monetary limit of $5,000. Section 19 provided:

19 Orders of the Tribunal

(1) The Tribunal may, in any proceedings before it, make one or more of the following orders:

(a) an order that requires a party to the proceedings to pay an amount of money to a person specified in the order within such time as may be specified in the order;

(b) an order that an amount of money is not due or owing by a party to the proceedings to a person specified in the order;

(c) an order that restrains any action in breach of a residential tenancy agreement by a party to the proceedings;

(d) an order that requires an action in performance of a residential tenancy agreement by a party to the proceedings;

(e) an order, having effect for a period not exceeding 12 months, that declares that an amount of rent payable under a residential tenancy agreement is excessive and declares a maximum rent;

(f) an order that recognises a person as a tenant under a residential tenancy agreement;

(g) an order that varies or sets aside any order made in the proceedings or in earlier proceedings;

(h) any other ancillary orders which the Tribunal thinks appropriate.

(2) An order made under subsection (1) (c) or (d) may be made notwithstanding that it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(3) The Tribunal shall not make an order for the payment of an amount that exceeds $5,000 or, where some other amount is prescribed for the purposes of this section, that other amount.

91. In 1987, the Residential Tenancies Act 1987 (NSW) was enacted. It expanded the subject matter of the Tribunal’s jurisdiction. The Tribunal was empowered to make one or more of the orders specified in s 85, which provision also retained the $5,000 monetary limit:

85 Orders of the Tribunal

(1) The Tribunal may, in any proceedings before it, make any one or more of the following orders:

(a) an order for which an application may be made by any person (whether under this or any other Act) to the Tribunal,

(b) an order arising out of the Tribunal's jurisdiction with respect to rental bonds,

(c) an order that varies or sets aside, or stays or suspends the operation of, any order made in the proceedings or in earlier proceedings,

(d) any ancillary order which the Tribunal thinks appropriate.

(2) An order may be made by the Tribunal—

(a) in the absence of any party, or

(b) as an interim order,

or both.

(3) The Tribunal shall not make an order for—

(a) the payment of an amount that exceeds $5,000 or such other amount as may be prescribed, or

(b) the performance of work or the taking of steps the cost of which may or will exceed $5,000 or such other amount as may be prescribed.

(B) Appeal Panel decisions relied on by the Landlord

92. As the Landlord pointed out, there appears to be some support in two decisions of the Appeal Panel for the Tribunal’s view (as recorded in the transcript of the 18 May 2023 hearing) that, although it could not make “an order” exceeding $15,000, it could make multiple orders so long as any single order did not exceed $15,000.

93. Orders cumulatively exceeding $15,000 were made in Bridgford v Brien [2017] NSWCATAP 111. There, separate orders were made in respect of “reduction of rent” pursuant to s 44(1)(b) for the landlord’s failure to carry out repairs and, additionally, three separate orders were made requiring the Landlord to pay compensation in respect of various distinct periods of time, arising from the landlord's breach of three separate provisions of the tenancy agreement. The orders taken together exceeded $15,000, although no single order exceeded $15,000. The Appeal Panel referred to the question of jurisdiction very briefly at [43] (emphasis added):

[43] We note that s 187(4) of the RT Act imposes monetary limits on Tribunal orders. The parties did not raise the question of whether the total of the amounts in the proposed orders (which exceeds $15,000.00) complies with s 187(4). There is a reasonable basis for concluding that s 187(4) is intended to address orders individually, not collectively. We are content to reinstate orders 2 to 7 of 2 November 2016.

94. The Appeal Panel did not explain the “reasonable basis” for that view, possibly because the matter had evidently not been raised or addressed by the parties. It is unnecessary to express a final view on the correctness of that view. The circumstances in Bridgford are distinguishable because the orders made there related to different subject matters, ie, rent reduction and compensation.

95. In Nunez v Sampson [2022] NSWCATAP 125, a differently constituted Appeal Panel applied a similar view at [75]-[76]. Although the orders made by the Appeal Panel there cumulatively amounted to more than $15,000 in respect of compensation, the Appeal Panel said this did not reach the monetary limit because compensation was payable for separate claims of breaches in respect of each item, citing Bridgford.

96. In Nunez, at first instance, the Tribunal assessed compensation totalling $37,000 for breaches by the landlord of the residential tenancy agreement. It then reduced the award to the maximum of $15,000 in respect of breaches that had been rectified. The tenant’s proceedings in NCAT on 29 August 2021 raised a long list of defects which had not been rectified by the landlord. The tenant sought orders for the immediate rectification of the items, compensation under s 187(1)(d) of the Residential Tenancies Act in an amount slightly in excess of $10,000 (representing a half a month’s rent) and for a reduction in rent to apply until such time as the rectifications were carried out.

97. After NCAT proceedings were commenced, the landlord rectified some of the defects about which the tenant complained. Prior to the hearing at first instance, the tenant lodged an amended application and identified the orders which were sought. Under the amendments, the tenant added reliance on s 44(1)(b) of the Residential Tenancies Act seeking a 50% reduction in rent from the commencement of the tenancy until the breaches were remedied. The amended application stated that orders were sought under subss 187(1)(b), (c), (d), (e), (f) and (2)(b). In the tenant’s written submissions, the landlord was alleged to have breached ss 52(1), 63(1) and (2) and 70. These provisions relate respectively to a landlord’s general obligations to keep residential premises in a reasonable state of cleanliness and fit for habitation, to provide and maintain the residential premises in a reasonable state of repair and to provide and maintain locks and other security devices. It is evident that the Tribunal’s order for compensation in the amount of $15,000 reflects the maximum amount of $15,000 sought by the tenant (at [22]).

94. The Tribunal also made additional orders which required the landlord to rectify various other breaches and to pay compensation to the tenant in varying amounts per week or part of a week until the individual relevant defect was rectified. The Tribunal viewed the claim for compensation as being one to be determined under s 187(1)(c) or (d) arising from the landlord’s breach of obligations under ss 52 and 63 of the Residential Tenancies Act.

95. On appeal, the Appeal Panel found that the Tribunal below had provided inadequate reasons for its assessment of compensation and the Appeal Panel proceeded to re-determine the amount of compensation. The Appeal Panel said that it was only concerned with reassessing the amount of compensation. It then reassessed compensation by reference to seven individual breaches by the landlord in not rectifying defects which resulted in the tenant not getting proper value for the rent being paid. These defects had ultimately been rectified by the landlord. The Appeal Panel explained that the compensation for each individual breach was calculated by reference to the length of time it took the landlord to rectify the breach together with a proportion of the weekly rental which the Appeal Panel attributed to the individual breaches. The total amount of compensation for the seven individual breaches amounted to $16,825. The Appeal Panel stated at [76] that this did not exceed the monetary limit “because the compensation is payable for separate claims of breaches in respect of each item”, citing Bridgford.

96. As noted above, there is a third relevant Appeal Panel decision. In Thomas v Godbolt [2021] NSWCATAP 318, some doubt was cast on the Appeal Panel’s view in Bridgford that the monetary limit applies to each order made in respect of each cause of action (or claim) and not to all orders collectively. It was unnecessary, however, to express a definitive view. At [71]-[73], the Appeal Panel said (emphasis added):

We note that the total amount to which we have concluded the tenants are entitled is less than $15,000. It is therefore unnecessary to address the question whether the Tribunal had jurisdiction to make orders which, in total, exceeded $15,000. We note that the Tribunal referred to the Appeal Panel decision in Bridgford v Brien [2017] NSWCATAP 111 as authority for the proposition that the limit on jurisdiction laid down in s 187(4)(a) of the RT Act and regulation 40 of the Residential Tenancies Regulation 2019 (NSW) applies distributively to each order made in respect of each cause of action and not globally to all orders sought in a particular application. We further note that the Appeal Panel in Bridgford v Brien did not purport to determine that question finally and does not appear to have received submissions in relation to that issue.

Although the tenants addressed this issue in reply, the landlord did not raise any ground of appeal challenging the award of more than $15,000 by reference to the limits upon the Tribunal’s jurisdiction imposed by s 187(4)(a) of the RT Act.

The fact that we have not addressed the question, whether the jurisdictional limit imposed by s 187(4)(a) applies distributively to each separate order made by the Tribunal or whether it applies globally to all orders made in one application, should not be taken as approval of the approach adopted by the Tribunal in this regard.

101. In the proceeding before me, the Landlord defended the view applied in Bridgford and Nunez and added that it was supported by an ordinary reading of s 187(4), with emphasis being placed on the reference therein to “an order”.

102. As will be explained in the next section of these reasons for judgment, I consider that the monetary orders made by NCAT in the present proceeding on 11 April and 18 May 2023 have features which distinguish them from the orders in Bridgford and Nunez and were made in excess of power.

(C) Why some of the orders dated 11 April and 18 May 2023 were beyond NCAT’s power

103. As noted above, the question of whether the money payment orders made by the Tribunal on 11 April and 18 May 2023 were beyond power turns on the proper construction of various legislative provisions, having regard to text, context and purpose. For the following reasons, I consider that the money payment orders made on those two dates were beyond power.

104. It is made plain in s 187(1) that the Tribunal has a discretionary power, on application by inter alia a landlord or tenant under the Residential Tenancies Act (or in any proceedings under the Act), to make one or more of the ten specified orders set out in s 187(1). It is indisputable that the Tribunal is not confined to making only one order in any single proceeding. For example, on an application by a landlord, the Tribunal could order a tenant to make a payment to the landlord of an amount of money for rental arrears under s 187(1)(c) and also order the tenant to pay all or part of future rent to the Tribunal under s 187(1)(f) until the whole or part of the agreement has been performed or any application for compensation has been determined.

105. For reasons which I will now explain, I consider, however, that any such individual order will attract the monetary limit of $15,000.

106. The terms of s 187 are set out at [81] above. On its face, it presents several difficult issues, not all of which need to be resolved in the present proceeding.

107. Without being exhaustive, those issues relate to the following matters:

1. Some of the kinds of orders specified in s 187(1) potentially overlap. For example, a landlord’s claim for rental arrears arguably could be the subject of both an order for the payment of money under s 187(1)(c) and an order as to compensation under s 187(1)(d). If the monetary limit of $15,000 applies to any single such order, is it lawful for the Tribunal to make an order for rental arrears under s 187(1)(c) in the amount of $15,000 and also make a separate order on the same application under s 187(1)(d) for the payment of additional rental arrears as “compensation”?

2. Does the answer to (a) depend on whether the reference in s 187(2)(a) to “loss of rent” means something different from rental arrears?

3. And even if it does, to what extent can “compensation” still include an amount for rental arrears given that:

1. s 187(2) is expressly stated not to limit the Tribunal’s powers to make an order as to compensation; and

2. the Tribunal’s power to make an order as to compensation includes the power to order compensation to be paid for “any other breach of a residential tenancy agreement”, which presumably includes a breach of the obligation to pay rent (see s 187(2)(b)).

4. To what extent, if at all, can the monetary limit on any order for the payment of money for, say, rental arrears be circumvented by the Tribunal making more than one such order in proceedings involving an application for the payment of rental arrears, where no individual order exceeds the limit of $15,000?

5. A final example (and one which plainly does not arise in the present case) is provided by Anforth, Christensen and Adkins in their leading text, Residential Tenancies Law and Practice in NSW (8th ed, 2022, The Federation Press) at [2.187.1]. They say there that it “is not at all clear how [s 187] is intended to work” in terms of the relationship between the different monetary limits which apply to rental bonds, as opposed to any other case. Where, for example, there is a rental bond, can claims be determined up to that amount, but if there is no bond, are claims confined to a limit of $15,000?

108. In the light of such matters, the authors of the text state that there “remains a need for the legislature to clarify these matters” (at [2.187.1]). I respectfully agree (cf Corcoran v Far [2019] NSWSC 1284 at [17] per McCallum J).

109. As previously mentioned, not all these challenging questions need be resolved here. Their resolution should await cases where the proceeding requires such a determination. There are, however, two features of the impugned orders made by the Tribunal in this case which I believe demonstrate that they were made beyond the Tribunal’s powers.

110. The first notable feature is that, in their own terms, each of orders 1 and 2 dated 11 April 2023 and orders 6, 7 and 8 dated 18 May 2023 required Mr Hawkins to pay rental arrears to the Landlord. In my view, where on an application to NCAT a landlord seeks an order for the payment of an amount of money representing rental arrears, the monetary limit of $15,000 applies to cap the total amount which the Tribunal can order for that particular claim in that particular application. The clear legislative intention of s 187(4) and reg 40 is to impose monetary limits on the Tribunal’s power to make an order which involves the payment of money as set out in s 187(1). That intention is subverted if the Tribunal makes an order for rental arrears in excess of $15,000. Each of orders 1 and 2 dated 11 April 2023 and order 8 dated 18 May 2023 explicitly required Mr Hawkins to pay a monetary amount for rental arrears in excess of $15,000. Accordingly, on their face, each order was beyond the Tribunal’s power and should be set aside.

111. The second notable feature relates to orders 6 and 7 dated 18 May 2023, which were consciously broken down by the Tribunal into two separate orders so as to avoid exceeding the $15,000 limit. The legislative intention to cap any single order made by the Tribunal for rental arrears in any individual application before the Tribunal is equally subverted if the Tribunal breaks down the amount of the rental arrears to sums which are $15,000 or below and consequently makes multiple orders for payment of rental arrears, none of which individually exceeds $15,000. Accordingly, orders 6 and 7 dated 18 May 2023 are beyond power because it is plain that those sums were fixed so as not to exceed the $15,000 monetary limit.

112. Order 3 dated 11 April 2023 relates not to rental arrears, but to future rental payments. But because the amount specified ($15,208.50) exceeds the $15,000 limit, it too is beyond power.

113. If a landlord wishes to recover more than $15,000 in rental arrears in a single proceeding, they have the option of bringing a proceeding in an appropriate court (particularly the Local Court or the District Court depending on their own jurisdictional limits). Alternatively, it might be open to the landlord to bring more than one application in NCAT seeking an order for payment of an amount of money for rental arrears not exceeding $15,000 in each application.

114. The Landlord sought to justify the lawfulness of the monetary orders made on 11 April and 18 May 2023 on the basis that they related to “separate breaches” of the plaintiff’s obligation to pay rent under the residential tenancy agreement or were “multiple breaches” of that obligation. This submission may have been inspired by the reasoning in Nunez, where, in respect to an order for compensation in an amount which exceeded $15,000, the Appeal Panel found that the monetary limit was not breached because the compensation was payable for “separate claims of breaches in respect of each item”.

115. That reasoning can have no application here. This is simply because the monthly rent payable under the residential tenancy agreement was $15,208.50, which itself exceeds the monetary limit. Thus there is no scope to avoid the monetary limit by saying that the orders related to separate breaches of Mr Hawkins’ obligation to pay rent. This particular feature of the residential tenancy agreement here is likely to limit the implications of this judgment for other proceedings relating to the Residential Tenancies Act where the rent does not exceed $15,000.

116. In circumstances where these particular money payment orders made on 11 April and 18 May 2023 were in excess of power, they should be set aside. The setting aside of the 18 May orders necessarily requires that the s 78 certificate issued by NCAT on 19 June 2023 should be set aside, as also should the Local Court Judgment which is based on that certificate.

(d) No determination of Mr Hawkins’ off-setting claim

117. As previously noted, Mr Hawkins contends that, to date, his application RT 23/22334 remains to be heard and determined by NCAT. In his affidavit dated 17 August 2023, Mr Hawkins attached an email dated 15 May 2023 which he received from NCAT which acknowledged the successful lodgement of his application. He was told that a notice of hearing would be sent to the parties within three business days. Mr Hawkins deposed, and I accept, that he never received any such notice and his inquiries have indicated that none was ever sent.

118. On 27 July 2023, Mr Hawkins filed with NCAT an application to reinstate the RT 23/22334 proceedings.

119. On 1 August 2023, Mr Hawkins received an email from NCAT. The email attached a Notice of Order which was in the following terms:

On 27/7/2023 the Registrar received an application to reinstate matter number RT 23/22334 which was apparently dealt with on 18/5/2023.

A copy of the reinstatement application is enclosed for the Respondent.

The Tribunal makes the following orders:

1. The Respondent is to provide to the Tribunal and the Applicant, either in person or by post, with any submissions and documents in reply to the application to reinstate by 14/8/2023

2. The Applicant is to provide to the Tribunal and the Respondent, either in person or by post, with any submissions and documents in reply to the Respondent by 28/8/2023.

120. It is evident from the terms of the Notice of Order that NCAT considered that RT 23/22334 had been disposed of by the consent orders dated 18 May 2023.

121. In his affidavit dated 17 August 2023, Mr Hawkins deposed that, as at 14 August 2023, the Landlord had not filed and served any submissions and documents in reply to his application to reinstate, notwithstanding that it had been directed to do so by the Notice of Order dated 1 August 2023. The evidence is unclear as to whether either the Landlord or Mr Hawkins provided any submissions or material to NCAT after 14 August 2023.

122. In any event, by a Notice of Order dated 30 August 2023, NCAT stated that the application to reinstate RT 23/22334 had been considered and the following orders were made:

The application is dismissed because:

THE REINSTATEMENT APPLICATION WAS NOT MADE WITHIN TIME (7 DAYS) AND THE APPLICATION TO EXTEND TIME IS REFUSED.

Reasons:

Orders were made on 18/5/2024: finalising RT 23/22334 by consent.

123. The Landlord contended that, whether or not the proceedings RT 23/22334 were determined on 18 May 2023, Mr Hawkins’ application for reinstatement of those proceedings was dismissed on 30 August 2023, referring to the Notice of Order bearing that date. It submitted, therefore, that prayer 3 in the amended summons is inutile. The Landlord said that it was for Mr Hawkins to determine if and how he proposes to press his off-setting claims. The Landlord added that it would be inappropriate for the Court to stay existing orders pending a hearing of any off-setting claim.

124. In circumstances where the money payment orders made on 18 May 2023 will be set aside as beyond power, NCAT’s decision dated 30 August 2023, which was based in part upon the making of those earlier orders, must necessarily also be set aside.

125. It is appropriate that Mr Hawkins’ off-setting claim be remitted to NCAT for determination according to law. If the application is pressed by Mr Hawkins, the Tribunal will need to address the fact that it seeks the making of an order which is in excess of the $15,000 limit.

126. I consider, however, that there is no basis for granting a stay as sought by Mr Hawkins. It is unnecessary to make such an order in circumstances where the Local Court Judgment has been set aside, as have the relevant money payment orders made by NCAT. Hence, as matters stand at present, there is nothing to enforce insofar as the payment of money is concerned.

127. Finally, as to costs, I see no reason why they should not follow the event. Mr Hawkins should have a costs order in his favour notwithstanding that he is a litigant in person (see Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 and other authorities referred to in Ritchie’s Uniform Civil Procedure NSW at [42.2.25]).

Conclusion

128. For all these reasons, the following orders will be made:

1. Grant an extension of time to permit the plaintiff to rely upon the amended summons filed 27 February 2024.

2. Set aside orders 1, 2 and 3 dated 11 April 2023 by the NSW Civil and Administrative Tribunal.

3. Set aside orders 6, 7 and 8 dated 18 May 2023 by the NSW Civil and Administrative Tribunal, including that part of the chapeau to the 18 May 2023 orders which states that they are “in full and final settlement of the application”.

4. Set aside the NSW Civil and Administrative Tribunal certificate dated 19 June 2023 in proceeding RT 23/12547.

5. Set aside the Local Court Judgment dated 30 June 2023.

6. Set aside the order made on 30 August 2023 by the NSW Civil and Administrative Tribunal.

7. Remit matters RT 23/12547 and RT 23/22334 to the NSW Civil and Administrative Tribunal for reconsideration according to law.

8. The first defendant pay the plaintiff’s costs.

**********

Decision last updated: 19 November 2024