Rent arrears order of $6,449.86 set aside after an earlier ruling found no tenancy agreement (NCAT, 2026)

What happened

The tenancy agreement was dated 22 January 2024 for a fixed term from 22 January 2024 to 21 July 2024. Rent was $820.00 per week and the tenant paid a bond of $3,280.00. On 27 May 2024 the landlords served a notice of termination on the ground that the fixed term was ending, with a termination date of 21 July 2024. On 5 June 2024 they served a further notice of termination on the ground that the tenant had not paid rent, water usage or utility charges, with a termination date of 20 June 2024.

Both sides then went to the Tribunal. In June 2024 the tenant applied for a rent reduction, compensation for outstanding repairs and a declaration that the 5 June notice had no effect because it was retaliatory. The landlords applied for termination, the bond and a money order for arrears. In July 2024 the tenancy was terminated by consent and possession was suspended until 26 July 2024. The tenant vacated the premises.

On 4 October 2024 those first two applications came back before the Tribunal. Parts were withdrawn and the balance of both applications was dismissed after hearing. In its written reasons the Tribunal found the tenant had not tendered a copy of the tenancy agreement or any substitute evidence to prove one, and that the landlords had chosen not to admit or deny that an agreement existed. On that basis the Tribunal held that it had not been shown it had jurisdiction, and dismissed both applications for that reason and also for lack of evidence. Neither side appealed that decision.

Each side then filed a fresh application. The landlords claimed rent arrears and compensation for end-of-tenancy damage. The tenant claimed compensation for breach of the landlord's obligation to keep the premises in a reasonable state of repair under section 63 of the Residential Tenancies Act 2010 (NSW), and for breach of his right to quiet enjoyment under section 50. On 17 March 2025 the Tribunal dismissed the tenant's application because it was not filed within the prescribed period and refused to extend time, and ordered the tenant to pay the landlords rent arrears of $6,449.86 immediately. The tenant appealed both decisions, and the Appeal Panel heard the two appeals together over three hearing days.

What each side wanted

The tenant argued that the money order should not have been made at all. He said the Tribunal had no jurisdiction because the agent had not produced a signed management agency agreement or a current licence, that the arrears claim was barred by res judicata (the rule that a claim already decided cannot be brought again) because of the earlier dismissal, that the Tribunal was wrong to find the earlier dismissal involved no consideration of evidence, and that he was denied procedural fairness. On the dismissal of his own compensation claim he argued the Tribunal failed to properly exercise its discretion to extend time, took into account an irrelevant matter (that the landlords had acted to his benefit by not pursuing end-of-lease costs), reached an unreasonable conclusion that his claim had only slight prospects, and showed an apprehension of bias in its tone and reasoning. The landlords, represented by their managing agent, resisted both appeals and supported the orders made on 17 March 2025.

What the tribunal decided

In the appeal about the money order (file 2025/00118350) the Appeal Panel allowed the appeal. It set aside the Tribunal's orders of 17 March 2025 and, in their place, ordered that the landlords' application be dismissed. The effect is that the order requiring the tenant to pay $6,449.86 in rent arrears no longer stands.

In the appeal about the tenant's compensation claim (file 2025/00118320) the Appeal Panel dismissed the appeal. The dismissal of that claim therefore remains, although for a different reason from the one the Tribunal gave: the Appeal Panel held the tenant was shut out of bringing the claim at all.

The Appeal Panel said that, because of this conclusion, there was no utility in considering the tenant's other grounds of appeal, including the arguments about the agent's paperwork, procedural fairness and bias.

Why the tribunal decided it that way

The Appeal Panel first dealt with res judicata. That rule bars a party from running the same claim again once it has been finally decided between the same parties by a tribunal with power to decide it. The Appeal Panel agreed with the Tribunal that the arrears claim was not barred on this basis. The written reasons from 4 October 2024 showed that the reference to a lack of evidence was about the landlords' hard copy evidence bundle never reaching the Tribunal registry, invalid postal tracking numbers and the tenant's assertion that he had not been served. An electronic rent ledger was on file but the audio of that hearing showed it was not considered. So the arrears claim had never been decided on its merits.

The Appeal Panel then turned to issue estoppel, which the Tribunal had identified but not applied. Issue estoppel is a narrower rule: once a final decision has settled a particular question of fact or law that was essential to the result, the same parties cannot later argue the opposite of that question, even in a case about something completely different. Applying Blair v Curran and Gleeson v The Owners – Strata Plan No 48226, the Appeal Panel asked what the 4 October 2024 decision had actually decided.

The answer was that there was no residential tenancy agreement between these parties. Because both applications were made under the Residential Tenancies Act 2010 (NSW), the Tribunal could only deal with them if satisfied such an agreement existed. The Appeal Panel found that finding was made on the merits — the Tribunal weighed the absence of a written agreement, the absence of any substitute evidence, the absence of a statement in acceptable form, and the landlords' decision not to admit or deny an agreement — and that it was fundamental to the conclusion that the Tribunal had no jurisdiction.

The Appeal Panel said it was not its role to critique the 4 October 2024 decision. The material point was that the decision was not appealed, so the finding that there was no residential tenancy agreement remained undisturbed. Both sides were therefore barred from asserting in later proceedings that the same tenancy agreement existed. That cut both ways: the tenant could not bring his compensation application, and the landlords could not bring their arrears application. The appeal against the money order succeeded because that order should never have been made; the appeal about the compensation claim failed because the claim could not succeed in any event.

What this means if you are in a similar position

If you are in a similar position, this decision shows how much weight a tribunal gives to a finding it has already made. An earlier decision that looks like it went nowhere — dismissed for want of evidence, or dismissed because jurisdiction was not established — can still settle a point for good. Here the point settled was the most basic one of all: whether there was a tenancy agreement. Once that finding was made and the time to appeal it passed, neither the renter nor the owners could run any claim under the Residential Tenancies Act about that same arrangement.

It also shows that proving the agreement is part of proving the case. The tribunal can only use its tenancy powers if it is satisfied a residential tenancy agreement exists, and that usually means producing the signed agreement, or other evidence of the arrangement, along with condition reports, the rent ledger and statements in a form the tribunal accepts. Directions about filing and serving evidence are not administrative formalities; in the first hearing, evidence posted to the registry that never arrived was treated as evidence that was never filed.

In disputes between renters and owners, most people start with something in writing to the other side before any tribunal application — a repair or breach notice, a written demand setting out the loss claimed, or a bond claim letter — so that the problem, the dates and the amount are on the record, and so the paperwork is already gathered if the matter does go further.

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

Source: Baz v Shearer [2026] NSWCATAP 353 (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.