Tenant’s appeal against consent orders ending her tenancy refused and dismissed (NCAT, 2026)

What happened

The tenant had rented a unit since 2020. On 5 June 2026 she applied to NCAT for a long list of repairs under the Residential Tenancies Act 2010 (NSW), including wood rot, damp and black mould around the front windows, a ceiling and light fittings in poor condition, garage doors that she said left her without vehicle access, broken locks, rusted stair landings, rotten floorboards and a worn kitchen. She also asked for an order about quiet enjoyment, a declaration that a termination notice was retaliatory, a rent reduction until repairs were done, and a refund of water charges unless the landlord produced a water compliance certificate. She said she had been raising the repairs since the start of the tenancy.

On the same day the landlord served a termination notice requiring vacant possession by 19 June 2026, and on 8 June 2026 the landlord applied to NCAT for termination, possession and rent arrears. The landlord said the tenant had for years kept a car in a garage space allocated to another tenant, had caused tradespeople to leave, and had not paid the lawful rent of $330 per week from 10 April 2026. The landlord told the Tribunal that about $200 in rent and about $1,700 in water usage was outstanding, and that an earlier 90-day notice was no longer relied on because it had left out the required Fair Trading statement.

On 30 June 2026 both applications came before a general member for conciliation and directions. The tenant took up the member's offer of help from the duty advocate, and the matter was stood down twice for discussions. After the first break the duty advocate told the member there had been no progress and the matter would have to be adjourned with directions. The member then raised, as something he said he always tried to put on the table, whether the dispute could be resolved by the tenant agreeing to give vacant possession with time to organise her affairs, and asked the duty advocate to take instructions.

After the second break the duty advocate said the tenant agreed to give vacant possession but wanted four months because she had been looking for another property in the area for three months without success, and asked that the landlord give up the water claims. The member read out proposed orders and asked whether they reflected the agreement. The landlord and the duty advocate confirmed them and consent orders were entered. They terminated the tenancy on 30 October 2026 with vacant possession on that date, set a daily occupation fee of $47.14 from 31 October 2026 if possession was not given, kept rent at $330 per week until then, withdrew and waived the rent arrears and water claims, recorded that the tenant would not use any parking space other than her own, and withdrew the balance of the tenant's own application.

What each side wanted

The tenant, represented on appeal by a Legal Aid solicitor, lodged a notice of appeal on 22 July 2026, eight days outside the 14-day limit, and asked for an extension of time. She argued three things: that the Tribunal had no power to make the termination order because the termination notice did not set out the ground for it as required by section 82 of the Residential Tenancies Act, so the jurisdictional facts were missing and section 59 of the Civil and Administrative Tribunal Act 2013 (NSW) was not satisfied; that she had consented under a mistake, because she had been told the member would make an order treating the lease as frustrated and that she would get only two weeks to move, and she did not realise her repairs and water claims were being given up; and that she had been denied procedural fairness because she came expecting directions for a hearing and instead the matter was pushed back into conciliation. The landlord appeared for herself by audio-visual link and opposed the appeal.

What the tribunal decided

The Appeal Panel made three orders: it extended to 22 July 2026 the time for filing the notice of appeal, it refused leave to appeal, and it dismissed the appeal. The extension was granted because the delay was short, the tenant had explained it by the time taken to contact Legal Aid, obtain the sound recording of the hearing and be advised, and the landlord suffered no prejudice from the delay.

The consent orders of 30 June 2026 therefore stood. Those orders terminated the residential tenancy agreement on 30 October 2026 with vacant possession to be given on that date, required the tenant to pay an occupation fee of $47.14 per day from 31 October 2026 until possession was given, kept rent at $330 per week in the meantime, withdrew and waived the rent arrears and water claims to the date of the orders, recorded the tenant's agreement not to use any parking space other than her own, and withdrew the balance of the tenant's application.

Why the tribunal decided it that way

The Appeal Panel dealt with the procedural fairness ground first, following the approach that if a breach of natural justice is made out the matter may have to be reheard anyway. It found no denial of a fair hearing. The transcript showed the member never set out to decide either application on its merits; this was a conciliation and directions listing. The member's references to a 'live' termination notice were only to separate the notice the landlord was relying on from earlier ones she had abandoned, and he made no finding that the notice was valid. The member took no part in the negotiations themselves, and did no more than give the parties a further chance to settle. The orders read aloud plainly included the tenant withdrawing her own application, even though the words 'full and final settlement' were not used. The reason the matter was never listed for a hearing was that the parties said they had settled it.

On jurisdiction, the Panel explained the difference between two kinds of problem with a termination notice. Section 82 of the Residential Tenancies Act says what a notice must set out, including the ground for it. Section 113 lets the Tribunal make a termination order despite a defect in the notice or its service, if it thinks that appropriate and is satisfied the tenant suffered no disadvantage, or that any disadvantage is cured by the orders made. Earlier decisions have held that a notice giving less than the minimum notice period is not merely defective but fails a precondition to the Tribunal's power, and cannot be fixed under section 113. A failure to state the ground is different: it goes to the content of the notice, which is the very thing section 113 exists to excuse. Section 87C does not require the Tribunal to be satisfied that the notice complied with section 82. The Panel therefore held the Tribunal did have power to make the termination order. It added that this did not decide whether the section 113 tests were in fact met, or how the discretion should have been exercised if the case had gone to a full hearing.

The Panel also rejected the argument built on section 59 of the Civil and Administrative Tribunal Act, which deals with orders giving effect to a settlement whose terms are in writing, signed and lodged with the Tribunal. Following earlier authority, section 59 is aimed at agreements reached outside the hearing process and then lodged. Here the agreement was reached and the orders entered in the course of an oral conciliation and directions hearing, so section 59 was not engaged and nothing turned on whether its conditions were met.

On the mistake ground, the Panel admitted the tenant's later statement as significant new evidence, because it described what happened at the listing and in her conversations with the duty advocate and so could not have been available earlier. It set out the established principles that a consent order can be set aside only on a basis that would make the underlying agreement void or voidable, such as illegality, misrepresentation, duress, mistake or undue influence, and that this generally requires pointing to conduct of the other party. The published text available here stops partway through those principles, so the Panel's detailed application of them to the tenant's account is not set out, although its final orders refusing leave and dismissing the appeal are recorded.

What this means if you are in a similar position

If you are in a similar position, this decision shows how much weight the Tribunal gives to orders made by consent. Once a party or their representative tells the Tribunal that terms are agreed and the member reads those terms back, the orders that follow are treated as the parties' own bargain. Undoing them later is not a matter of saying the deal turned out badly or that you felt rushed; the published principles require a ground that would make a contract void or voidable, such as misrepresentation, duress or a relevant mistake, and that usually means pointing to something the other side did. It also shows that a settlement can sweep up your own claims: here the orders withdrew the tenant's entire repairs and water application, and that was treated as clear from the terms read out at the time.

The decision also shows how defects in a termination notice are treated. Not every flaw is fatal. Tribunal decisions distinguish between a notice that misses a precondition, such as a minimum notice period, and a notice whose content is incomplete, such as one that does not state the ground. The second kind can be excused under section 113 of the Residential Tenancies Act if the Tribunal thinks it appropriate and is satisfied the tenant has not been disadvantaged, or that the disadvantage is cured by the orders made. Whether that test is met in any case is decided on the evidence, which is one reason these questions are usually worked out at a hearing rather than assumed.

And it shows the difference between a conciliation and directions listing and a final hearing. At the earlier stage the member is not deciding who is right; the questions asked are preliminary, and the member may invite the parties to try to settle. In repairs and maintenance disputes, the step most people take first is a written notice to the landlord or agent setting out each item and asking for it to be fixed by a date, before any tribunal application is made.

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

Source: Richardson v Letitia [2026] NSWCATAP 337 (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.