Appeal allowed: NCAT to rehear whether $50-a-fortnight room payments created a tenancy

What happened

The owner of a three-bedroom house in Elemore Vale, New South Wales, and the occupier had been friends. The occupier moved in during December 2021 and paid no rent at the time. She did housework, including cleaning, dishes and laundry, and said she made ad hoc contributions to household expenses such as toilet paper and cleaning products. The owner slept in the living area and kept his belongings in one bedroom. The occupier slept in the main bedroom and, according to the owner, kept her belongings in a third bedroom. She had a friend install a deadbolt on the inside of her bedroom door. The kitchen and bathroom were shared.

On 18 June 2022 the owner sent a text message saying "Rent is $150 a week, I cover utilities, within reason, probably the cheapest accommodation you will find, this starts Monday." The occupier said she never received that message because she had blocked the owner's number, and she did not reply. No rent was paid until July 2024. The occupier said that in July 2024 the two of them decided to formalise the living arrangement and it was verbally agreed she would pay $50 a fortnight. She set up a direct debit, and her bank statements showed fortnightly payments to the owner described as "Matt Rent – $50.00". A later text message from the owner said "The tenancy agreement was not for the whole house, you know this ang …". In a supplementary witness statement the occupier said the owner often referred to himself as her landlord and to her as a tenant. The owner accepted the $50 payments were made, but said the only agreement was the one in his June 2022 text and that the payments were "repaying small amounts of rent".

The owner said he asked the occupier to leave on numerous occasions. On 30 March 2025 he sent a letter asking her to vacate and remove her belongings within two weeks. In July 2025 separate legal proceedings between the two began, which the Appeal Panel deliberately said nothing further about. On 16 August 2025 the owner left the house and has stayed with friends since; the occupier has lived there alone from that date. On 23 December 2025 the owner's solicitors sent a notice to terminate the tenancy agreement relying on the Residential Tenancies Act 2010 (NSW), giving 14 days and alleging a failure to pay rent and unlawful damage, and requiring the occupier to leave by 9 January 2026. The house remains mortgaged and the owner keeps paying the lender.

On 30 January 2026 the owner applied to NCAT for termination of what he said was a residential tenancy agreement, an order for possession and payment of rent arrears. The occupier applied for orders that an oral tenancy existed, that the termination notice was retaliatory, for compensation, and for restrictions on the owner's access. Both cases were heard together on 9 March 2026. On 10 March 2026 the Tribunal found there was no residential tenancy agreement and dismissed both applications, and made non-disclosure orders. Both sides appealed.

What each side wanted

On appeal the occupier argued the Tribunal did not properly engage with the evidence and was wrong to find no exclusive occupation of any part of the house. She said there were two versions of a tenancy: first, living there in exchange for housework and contributions, because value does not have to be money; and second, an oral agreement from July 2024 under which she paid $50 a fortnight for exclusive possession of two bedrooms, proved by her bank records. She said a fixed period is not required and the Tribunal should have presumed a periodic tenancy, and she asked the Appeal Panel to award her $15,000 compensation for breach of her right to quiet enjoyment. She also asked to be referred to by a pseudonym and for orders restricting publication of her evidence. The owner, through his solicitor, sought an extension of time to appeal, argued the Tribunal was wrong to find no agreement, said acceptance of his June 2022 offer lay in the "eventual transfer of funds labelled as rent", and asked for an order that the occupier pay $26,200 in rent arrears. He also argued the Tribunal should have ordered possession in his favour under s 187(1)(i) of the Act as an "other person", and that the decision was not fair and equitable because it ignored the hardship of paying the mortgage, rates and utilities on a house he could not live in.

What the tribunal decided

The Appeal Panel refused the application for the occupier to be referred to by a pseudonym. It did make an order under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the parties from publishing her evidence and documents about any medical condition or disability she may be experiencing, and about the other legal proceedings between the two of them.

It extended the owner's time to lodge his notice of appeal to 3 June 2026, then dismissed his appeal against order 1 in proceedings 2026/00040841 and, to the extent necessary, refused him leave to appeal against that order. The occupier's appeal against order 1 in proceedings 2026/00060650 was allowed, that order was set aside, and the proceedings were remitted to the Consumer and Commercial Division for hearing and redetermination by a differently constituted Tribunal, on such evidence as the parties file and serve under the directions that apply to that hearing.

There was no order as to costs of either appeal. No money was ordered to be paid by either side: the $26,200 arrears claim failed and the $15,000 compensation claim was not decided by the Appeal Panel, because the question of whether there was a tenancy goes back for a fresh hearing.

Why the tribunal decided it that way

The Appeal Panel set out what s 13 of the Residential Tenancies Act 2010 (NSW) actually requires. A residential tenancy agreement is an agreement under which one person grants another, for value, a right to occupy residential premises as a residence. It can be express or implied, oral or written, or partly both, and it can still be a residential tenancy agreement even if it does not give exclusive occupation. The Panel listed the essential elements: who the parties are, what land or premises or part of the premises is covered and that it is used as a residence, something that lets the start and duration of the term be worked out, something that lets the rent or other value be worked out, and that the agreement is not one the Act or the regulation excludes.

On duration, the Panel said the first Tribunal had leaned too hard on the absence of any discussion about how long the arrangement would last. A periodic agreement, one that simply rolls on week to week or fortnight to fortnight, can be treated like a periodic tenancy at common law, as a run of short terms treated as part of the original term. Such an agreement does not have to come from a conversation about a period; it can arise after a fixed term ends, by express agreement, or by implication from the way rent is paid, looking at all the surrounding circumstances. The Panel also noted that both sides, at first instance and on appeal, maintained that a tenancy existed, and that the evidence, including the owner's own text about the tenancy agreement not covering the whole house, his habit of calling himself the landlord, and the ongoing bank debits described as rent, tended to suggest the two behaved as landlord and tenant rather than as housemates in an informal domestic arrangement.

The owner's version failed on basic contract reasoning. His 18 June 2022 text could have been an offer, but there was no acceptance. The occupier's evidence was that she never received it, and there were no words or conduct amounting to a final and unqualified assent to its terms. The offer was $150 a week starting the following Monday. What she eventually paid, more than two years later, was $50 a fortnight, at a different interval and in a very different amount, with nothing to link those payments back to the 2022 text. That mismatch between offer and supposed acceptance meant no agreement was formed, so there was no error of law in dismissing the owner's case and no substantial miscarriage of justice justifying leave to appeal. Hardship, on its own, is not a reason to grant leave: an appellant must attack the decision itself, not just the position the decision leaves them in. The Panel also rejected the argument that it should have ordered possession under s 187(1)(i), saying several facts would first have had to be determined, and that once the Tribunal found there was no residential tenancy agreement and dismissed the applications it was hard to see how such an order could be made.

On the pseudonym request, the Panel said it does not simply give effect to the parties' wishes, even where the other side does not object. It must be satisfied that an order is desirable because of the confidential nature of the material or for another reason, and it has to weigh the public interest in open justice, which includes the fair and accurate reporting of proceedings and the names of the parties. Beyond a personal wish, nothing was pointed to that justified displacing that principle, so the pseudonym was refused. The narrower order over the medical and disability material and the other proceedings was made because that material was confidential, had only been relevant to an adjournment request already dealt with, and was not needed for these reasons. The published text ends part-way through the Panel's explanation of why it extended the owner's time to appeal, so its full reasoning on that point and on the occupier's appeal is not set out in the text available.

What this means if you are in a similar position

If you are in a similar position, this decision shows that a casual living arrangement between friends can still fall inside the Residential Tenancies Act 2010 (NSW), and that a tenancy does not need a signed lease, a fixed end date or exclusive use of the whole house. Under s 13 what matters is whether one person granted another a right to occupy a home for value, and that can be shown by oral agreement or implied from conduct. The decision also shows the limits of that: labelling a payment "rent" is not enough on its own if the figures and timing do not match any offer that was actually made and accepted, and a text message nobody responded to does not create an agreement.

It is also a reminder about how records are read. The things that mattered here were ordinary and everyday: bank transfer descriptions, text messages, and the words each person used to describe the other. The Appeal Panel treated those as evidence of how the two of them understood their relationship. Equally, the decision shows that NCAT publishes names unless it is satisfied that something more than a personal preference justifies withholding them, although it can restrict publication of specific sensitive material such as medical evidence.

In disputes about whether a tenancy exists, repairs, a bond, arrears or a termination notice, most people start with something in writing to the other side, for example a written response to a termination notice, a repair or breach notice, or a bond claim letter, and keep a copy of it. If that does not resolve matters, the next step is usually an application to the tribunal that handles residential tenancy disputes in the relevant state.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and house rentals and bonds.

Source: Baker v Rowell; Rowell v Baker [2026] NSWCATAP 307 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.