Social housing tenant’s late appeal refused, eviction order for rubbish left standing (NCAT, 2026)

What happened

The tenant rented a terrace house in Woolloomooloo from NSW Land and Housing Corporation under a social housing tenancy agreement. The terrace was one of a row owned by the same landlord, with a laneway to the side running onto a rear lane behind the terraces to another property.

The landlord applied to the Tribunal for an order terminating the tenancy on the ground that the tenant had breached the residential tenancy agreement. The case concerned a lack of cleanliness and rubbish in three areas: inside the rear of the terrace, the front footpath and street, and the rear lane. The Tribunal heard the matter on 25 May 2026 and heard oral evidence from the tenant, including evidence about a process by which items were brought into the terrace and the terrace yard, which it described as his way of dealing with his mental situation.

On the same day the Tribunal terminated the tenancy immediately for breach, ordered vacant possession, suspended the possession order until 25 June 2026, and ordered the tenant to pay the landlord a daily occupation fee of $19.53 per day from 26 May 2026 until possession was given. The landlord was allowed to ask for the matter to be relisted within 60 days of possession to work out the occupation fee owing. Five pages of written reasons were issued, although neither party had asked for written reasons.

The tenant lodged a Notice of Appeal on 19 June 2026. For residential matters the deadline is 14 days, so the appeal was 10 days late. A differently constituted Appeal Panel had earlier granted a stay, which paused the effect of the orders, until the appeal hearing on 26 August 2026. The tenant did not attend the appeal hearing and did not file a statement or affidavit. Neither party gave the Appeal Panel a transcript or sound recording of the hearing below, and neither party's representative on appeal had been at that hearing.

What each side wanted

The tenant, represented by a solicitor from Legal Aid NSW, asked for an extension of time to file the appeal and argued three grounds: that the written reasons were inadequate because they did not explain what area was meant by "the rear of the terrace", how it differed from the rear lane, what evidence showed the area was not reasonably clean, or which obligation the breach rested on; that the Tribunal failed to consider matters it must consider under s 87C(3) and s 154E of the Residential Tenancies Act 2010, in particular the tenant's own circumstances; and that the Tribunal wrongly applied s 113, which lets the Tribunal overlook a defect in a termination notice. The explanation offered for the delay was a history of events around the tenant trying to get legal representation. The landlord, represented by the Department of Communities and Justice, opposed the extension, pointing to a lengthy history of proceedings between the parties and to the prejudice of being kept out of possession, and argued the reasons were logical and understandable and met the requirements.

What the tribunal decided

The Appeal Panel refused leave to extend the time for filing the Notice of Appeal and dismissed the appeal. It also ordered that the extension of the stay granted on 26 August 2026 be set aside seven days after the date of its orders, which were made on 15 September 2026.

No money orders were made on the appeal. The Panel noted the tenant confirmed at the hearing that the occupation fee was being paid in line with the earlier orders. The Panel also refused to let either side rely on new material that had not been before the Tribunal below: two Google maps images from the tenant, and property care photographs and a Google image from the landlord. It said the relevance of the material had not been shown and it was not supported by any affidavit or statement explaining its context, and that an appeal is not a fresh hearing of the whole case.

Why the tribunal decided it that way

An internal appeal is not a second go at the same case. To succeed, an appellant must show the Tribunal made an error on a question of law, or get permission to appeal for one of the limited reasons in cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013, which turn on whether there may have been a substantial miscarriage of justice.

Because the appeal was filed late, the first question was whether to extend time under s 41 of that Act. The Panel applied the factors set out in an earlier Appeal Panel decision: the length of the delay, the reason for it, the prospects of success, and any prejudice to the other side. It treated the 10 days as relatively short but not insubstantial given the filing window was only 14 days. On the reason for the delay, it accepted the solicitor could speak to problems inside Legal Aid's systems, but there was no statement or affidavit from the tenant explaining what he did or did not do in the earlier part of the delay, before Legal Aid first made contact on the day the appeal was due. It found some, though not substantial, prejudice to the landlord, which had treated the matter as closed once the 14 days expired.

The Panel then looked at the merits, and found the prospects low because each ground would have failed. On the reasons, it read the decision below as clearly treating the rear of the terrace and the rear lane as separate areas, finding the rear of the terrace was within the boundary and plainly part of the residential premises, and finding rubbish there was enough to breach the cleanliness clause of the tenancy agreement. That made it unnecessary to decide whether the laneway or front path were part of the premises. On the mandatory considerations, the Panel accepted that in social housing cases the tenant's own circumstances must be considered, but said that without a transcript it did not know what evidence, documents or concessions were put at the hearing, and that reading the reasons fairly, they did record that he was a social housing tenant and had given evidence about his mental state, and made clear findings responsive to s 154E. On s 113, it held the reasoning disclosed no error: even if the notice was defective so far as it relied on the lane or footpath, a breach was still found inside the premises, and any reference to nuisance merely bolstered a result that would have been the same without it.

The absence of a transcript or sound recording ran through the Panel's reasoning. Where the Tribunal below had heard oral evidence and oral submissions, the Panel said it could not know what was put or conceded, which made it unsafe to conclude the Tribunal had failed to consider something.

What this means if you are in a similar position

If you are in a similar position, this decision shows how strictly NCAT treats appeal deadlines. For residential tenancy matters the window to file a Notice of Appeal is 14 days, and once it passes the other side is treated as having a settled benefit from the decision. An extension is possible under s 41, but the Panel looks for evidence, not submissions, about why the delay happened. Here a solicitor's account of office systems covered only part of the delay, and there was nothing at all from the tenant about the earlier period.

It also shows what an appeal can and cannot do. Disagreeing with the result is not enough, and an appeal is not a chance to run the case again with new photographs or maps. New material is generally kept out unless it was not reasonably available earlier and its relevance is explained in a statement or affidavit. Where the first hearing involved oral evidence, the written reasons alone may not let an appeal panel work out what was argued, so a transcript or sound recording of that hearing often matters.

The decision also illustrates that a tribunal does not have to resolve every disputed issue. Once it found rubbish in an area that was plainly part of the premises, it did not need to decide who owned the rear lane. In a dispute about a termination notice or a breach of a tenancy agreement, the step most people take first is a written notice or response to the landlord or agent that sets out their position and the dates involved, before any tribunal application or appeal is filed.

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

Source: Brown v NSW Land and Housing Corporation [2026] NSWCATAP 290 (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.