Shapkin v The University of Sydney

1. [1]

   This judgment is concerned with the plaintiff’s (Mr Shapkin) application for leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal (“NCAT”) of the 9 January 2023 (Shapkin v The University of Sydney [2023] NSWCATAP 2 (“APJ”); Case No. 23/00045445). The central issue in NCAT both at first instance and before the Appeal Panel was whether the residential agreement that he had entered into with the University of Sydney (“the University”) was a residential tenancy agreement to which the provisions of the Residential Tenancies Act 2010 (NSW) (“RTA”) applied. The summons was filed on 6 February 2023.

2. [2]

   By a second summons filed on 28 April 2023 (Case No. 2023/135575) naming the University as the first defendant, Mr Shapkin sought judicial review purportedly of both the first instance decision of Senior Member RC Titterton AM given on 4 October 2022 (“J”) and the Appeal Panel’s decision. The Appeal Panel was constituted by Senior Member D Charles and Senior Member D Ziegler.

3. [3]

   The University objected to the second, judicial review summons under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), and by ex tempore judgment given on 7 December 2023 I acceded to the University’s application and made an order refusing to conduct the judicial review proceedings. For the abundance of caution and for clarity, I stayed those proceedings: [2023] NSWSC 1534. A summons for leave to appeal from my decision was dismissed by the Court of Appeal on 27 June 2024 after a full consideration of the merits of Mr Shapkin’s argument: Shapkin v University of Sydney [2024] NSWCA 156 (per Griffiths AJA, Meagher JA agreeing).

The nature of the appeal and the question of leave

1. [4]

   By s 83(1) NCAT Act, an appeal from the Appeal Panel disposing of an internal appeal lies to this Court, only with leave, and limited to a question of law.

2. [5]

   The substantive dispute between Mr Shapkin and the University adjudicated in NCAT was whether the RTA applied to both the residential agreement and the premises in which he resided situate in Darlington Terrace, Darlington. The factual matrix of the dispute was Mr Shapkin’s eviction by the University on 27 September 2022. As Mr Shapkin put it, in the circumstances of this case, this involved two questions. The first was whether his agreement with the University was a residential tenancy agreement under s 13 RTA. The second was whether the premises had been exempted from the operation of the RTA by force of cl 31 Residential Tenancies Regulation 2019 (NSW) (“the Regulation”) made under s 12 RTA.

3. [6]

   The proceedings came before the Tribunal on Mr Shapkin’s urgent application for a declaratory order under s 11 RTA as to whether his residential agreement with the University is or is not a residential tenancy agreement to which RTA applies; and, whether the premises he occupied are or are not premises to which RTA applies.

4. [7]

   The question of whether Mr Shapkin’s residential agreement with the University was one to which RTA applied, turned upon the terms of s 8(1)(c) excluding “an agreement under which a person boards or lodges with another person”. Adapted for the facts, the issue was whether Mr Shapkin’s agreement was one under which he lodged with the University.

5. [8]

   The issue about whether the premises were exempt from the Act turned on the terms of cl 31 of the Regulation, as I have said. The particular question was whether the premises in which he resided under the agreement were a “hall of residence for students of an educational institution”. As issue was joined between Mr Shapkin and the University, this turned on whether the premises he shared with two other students came within the meaning of a hall of residence and if so, whether one or other of the conditions specified in sub-cl 31(1) of the Regulation applied.

6. [9]

   While Mr Shapkin’s grounds of appeal number 13 with many sub-paragraphs refining the point and running over about four pages, the essential points are those I have identified. Many of the grounds assert jurisdictional error of one kind or another or impugn the process of fact finding in some way. These matters may themselves give rise to questions of law for the purpose of s 83 NCAT Act: Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [46]-[51] (Kirk JA; Meagher JA and Simpson AJA agreeing).

7. [10]

   By implication Ms B Tronson of counsel who appeared with Mr J Pen of counsel for the University invoked the principles discussed in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 (at [42] per Campbell JA; Young and Meagher JJA agreeing) as governing a grant of leave under s 83 NCAT Act. This requires an applicant for leave to demonstrate that the proposed appeal involves “issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond something that is merely arguable”. This approach is applied by the Court of Appeal in relation to applications for leave to appeal to that court: see for example Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111 at [14] ff (per Basten AJA; Gleeson JA).

8. [11]

   I am not convinced that the principle is directly transposable, or applicable. Appeals under s 83 NCAT are limited to questions of law. By definition an issue of “principle” is involved and not infrequently the proposed appeal will involve a question of general public importance for that reason, going beyond something which is merely arguable. The amount in issue and the importance of the question to the parties may be very relevant factors. But it should be borne in mind that the jurisdiction of NCAT allows citizens to bring forward smaller claims than perhaps could be justified in the courts of ordinary jurisdiction where orders for costs will usually be made in favour of the successful party. There is no right to representation before NCAT: s 45 NCAT Act; costs are not awarded save in special circumstances: s 60 NCAT Act. It should also be borne in mind that as an administrative tribunal, the NCAT is not empowered to authoritatively decide questions of law. And this is a factor which may favour a grant of leave, particularly if the grounds proposed appear to raise a question of law which may be of public importance even if only in the sense that it may provide guidance in a number of cases in the future. However, the Court will be conscious of the consideration that the costs of proceedings in the Supreme Court may be disproportionate to what was at stake in NCAT. Naturally, factors both for and against a grant of leave need to be weighed, assessed and balanced.

9. [12]

   As it happens, the University did not oppose a grant of leave in relation to grounds raising a question of law about the meaning of a person who “lodges with another person” in s 8(1)(c) RTA and “hall of residence” in cl 31 of the Regulation. But it did oppose leave otherwise. In particular, leave in respect of Grounds 1, 7 and 8 was opposed. These grounds are concerned with an assertion of constructive failure to exercise jurisdiction, denial of procedural fairness and failure to give adequate reasons for the decision. While in terms each of these grounds does involve or raise a question of law, there is force in the University’s argument that in substance they seek to mount a collateral attack upon the whole of the process before the Appeal Panel.

10. [13]

    While normally a ground of appeal raising a question about whether a litigant was afforded natural justice should be dealt with first (at least where an appeal lies by way of rehearing) because of the general principle that a litigant is entitled to a fair trial at which he or she has the opportunity put his or her case properly before the Tribunal. However, as the University point out, this basic principle is subject to the Court’s power to dismiss an appeal for “futility”. In Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54, a unanimous High Court of Australia pointed out that this was subject to a qualification that an appellate court would not order a new trial if a properly conducted trial could not possibly have resulted in a different order from that made at the first trial. In their joint judgment, Mason, Wilson, Brennan, Deane and Dawson JJ explained this qualification in the following terms (at p. 145):

11. [14]

    Given that this Court’s powers are restricted to the resolution of material questions of law, I accept the University’s submission that I should not grant leave for Mr Shapkin to raise Grounds 1, 7 and 8 until I have dealt with the central questions of law that he wishes to agitate which require the determination of the questions referred to at [12] above. I grant leave to appeal on those questions and I will return to the other grounds later in this judgment.

12. [15]

    A further factor in relation to futility is that the term of the residential agreement in respect of which Mr Shapkin brings these proceedings expired on 5 December 2022. As I have said, the principal relief that Mr Shapkin sought in NCAT was a declaration under s 11 RTA. Clearly, where the term of the agreement expired at the conclusion of what I take to be the academic year in 2022, there is limited utility in remitting the matter to the Tribunal for a further hearing on the merits: Jarvis v Queanbeyan City Council [2002] NSWCA 20 at [13]-[14] (per Stein JA; Heydon JA and Mathews AJA agreeing).

Background facts

1. [16]

   The backgrounds facts are well set out in the Appeal Panel’s summary of the findings made by Senior Member Titterton at first instance (APJ [9]-[22]):

The Residential Agreement

1. [17]

   The Appeal Panel summarised the terms of the Residential Agreement as follows (at APJ [60]-[61]):

Facts relevant to the Cl 31 question

1. [18]

   The Appeal Panel summarised the facts relevant to cl 31 of the Regulation as follows (at APJ [109]-[110]):

2. [19]

   To these I would add that at first instance Senior Member Titterton found (at J [79] that he was “not entirely persuaded that the residence was located within ‘the institution’ for the purpose of cl 31 of the Regulation”. He reiterated that he was satisfied that the residence was owned by the University.

The Appeal Panel’s decision on the construction and application of s 8(1)(c) RTA

1. [20]

   The Appeal Panel commenced their essential reasoning with the language of s 13 RTA which is in the following terms:

2. [21]

   Section 8(1)(c) RTA provides that the Act does not apply to an “agreement under which a person boards or lodges with another person”. In passing, the Appeal Panel observed that “boards” and “lodges” have slightly different meaning (at APJ [71]). By reference to Noblett & Mansfield v Manley [1952] SASR 155 at p158, they said “boarding” is a form of lodging where the lodger, in addition to accommodation, generally receives food or meals as part of the living arrangements.

3. [22]

   The Appeal Panel was principally guided by its previous decision in Pupuke v Stretford [2016] NSWCATAP 7 at [20]–[23] (APJ [65]). In that case, Principal Member M Harrowell and Senior Member S Thode said (at [20]):

4. [23]

   The central question before the Appeal Panel, as it remains before me, was whether the expression “lodges with another person” means that the householder or householder’s representative must also reside within the premises during the term of the relevant agreement or whether the principle of remaining in possession and retaining control as master of the house admits of the possibility of an absentee or non-resident “master of the house”. In this regard, the Appeal Panel found (at APJ [78]-[82]).

5. [24]

   The Appeal Panel held that it was the householder’s legal right to possession rather than the physical exercise of that right which was required. It was not necessary that the householder, his servant or representative actually resided at the premises with the lodger.

6. [25]

   The Appeal Panel summarised the conclusions in the following way (at APJ [90]):

The Appeal Panel’s decision – the construction of cl 31 of the Regulation

1. [26]

   It is convenient to set out the terms of cl 31 of the Regulation now.

2. [27]

   Mr Shapkin did not say that the exceptions in cl 31(2) applied. For completeness, the evidence at first instance established that the University is a tertiary institution that provides formal education and is constituted by or under an Act of Parliament. The University was originally “constituted” under “the Act fourteenth Victoria No. 30”, which, inter alia, empowered it “to take, purchase and hold all real and personal property whatsoever”. The University was continued by the University and University Colleges Act 1900 (NSW). The current governing legislation is the University of Sydney Act 1989 (NSW) which by Sch 3, cl 1 provides:

3. [28]

   The Appeal Panel noted that the expression “hall of residence” was not defined in the RTA (APJ [95]) and referred to definitions in the Macquarie Dictionary and the Merriam-Webster.com dictionary. The latter definition is “a place where students live at a college or university”. The Appeal Panel expressed their reasoning as follows (at APJ [97]-[101]):

4. [29]

   The Appeal Panel also said (at APJ [104]):

5. [30]

   For clarity, I will repeat the Appeal Panel’s conclusion set out above (at [18]) here(at APJ [110]-[111]):

Consideration – the s 8(1)(c) issue

1. [31]

   While Mr Shapkin was apt to dress his submissions in the language of judicial review, understandably perhaps, given his commencement of the concurrent judicial review proceedings, it was clear that the focus of his argument on the s 8(1)(c) RTA grounds was the phrase “lodges with another person” and whether as a matter of law, as the Appeal Panel put it (at APJ [81]) this necessarily connoted “a permanent physical presence [of the University] at the Residence”.

2. [32]

   Mr Shapkin referred to a great deal of case law in his written submissions. It is not necessary, in my opinion to refer to all of it. He appeared to place particular emphasis upon the decision in Commissioner for Fair Trading (WA) v Voulon [2005] WASC 229 (Hasluck J). Hasluck J reviewed many of the traditional authorities distinguishing tenancies and licence agreements. I will not set them all out. His Honour observed (at [54]) that at common law the right to excusive possession was treated “as the crucial test of a tenancy” as opposed to a licence: Radaich v Smith (1959) 101 CLR 209 at p 222 per Windeyer J. At common law, a lodger, in contradistinction to a tenant, was a mere licencee having a personal right of occupation but no interest in the land. Whether the agreement granted the legal right of exclusive possession was a matter of its construction ascertained according to the normal rules of interpretation of a contract.

3. [33]

   The same approach was taken in Street v Mondford [1985] 2 AC 809 pp 816-817 (per Lord Templeman). His Lordship observed that an occupier of residential accommodation at a rent for a term is either or a lodger or a tenant. He is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. “A lodger is entitled to live in the premises but cannot call the place his own” (Voulon at [62]).

4. [34]

   Lord Templeman cited Allan v Liverpool Overseers [1874] LR 9 QB 180. Blackburne J (at p 191) explained the nature of the relationship between landlord and lodger. As adapted by Hasluck J (Voulon at [63]):

5. [35]

   Hasluck J also referred (at [57]) to The Commonwealth v Bogle, Boreham and Clark (1953) CLR 229; [1953] HCA 10 which was concerned with the provision of migrant hostels by the Commonwealth. The accommodation was furnished by the Commonwealth and other services were provided to the residents by employees of the Commonwealth, including meals. By reference to Fullagar J’s judgment (p 257), Hasluck J said, “having regard to the purpose of the hostels, to the character of the services and the facilities provided, to the inclusive nature of the charge made, and to the fact that the master keys of all the rooms were retained by officers of the Department, it seems clear that [the migrant families living there] were not tenants but lodgers.”

6. [36]

   Hasluck J also referred to Noblett & Mansfield v Manley referred to by the Appeal Panel (see [21] above). At common law, the importance of the concept of legal possession is obvious. The right to exclusive possession was a defining characteristic of a lease. In Noblett, Mayo J defined a “lodger” as one who resides as an “inmate” in another person’s house paying periodically for the accommodation. His Honour concluded that in ordinary circumstances, “legal possession remains in the person who provides the room or rooms, or meals. He retains possession and control over the rooms and the means of ingress and egress, but grants licence to guests who pay, or give consideration for the privilege”. As I have said, legal possession in this context must mean the legal right to exclusive possession, which as Hasluck J emphasised, was the mark of distinction between a lease, on the one hand, and a licence, on the other. In expressing his conclusions, however, Hasluck J said (at [78]):

7. [37]

   His Honour noted at [80] that (like its NSW counterpart) the Residential Tenancies Act 1987 (WA) (“WA RTA”) did not apply to any residential agreement where the tenant is a boarder or lodger. His Honour went on to say (at [81]):

8. [38]

   It is obvious from his Honour’s reference to “provides attendance or services” that Hasluck J is not speaking about actual physical residence in the premises. Rather, it is the right of the landlord or his servants to exercise unrestricted access to and use of the premises, I would add even if only for the purpose of cleaning and the provision of other limited regular services. It should, however, be noted that s 5(2)(d) WA RTA, the equivalent of s 8(1)(c) RTA does not include the expression “lodges with another person”. The exclusion is simply expressed in these terms: “Where the tenant is a boarder or lodger”; without the concluding qualification.

9. [39]

   Mr Shapkin also referred to a number of decisions of the former CTTT and NCAT where emphasis had been laid upon the preposition, “with” in s 8(1)(c). For example, in Muljono v Lang (NCAT, General Member Campbell, 20 April 2016, unrep) the Tribunal observed that the language of s 8(1)(c) was different from the language of s 6(1)(d) Residential Tenancies Act 1987 (NSW) (Repealed) which, I interpolate, was in the same terms as s 5(2)(d) WA RTA. General Member Campbell said at [18]:

10. [40]

    I accept that the preposition “with” is a word of connection or relationship, and its meaning must be derived from the actual context in which it is used. I agree with Hasluck J that one has to bear in mind that under the RTA the granting of an exclusive right of possession or occupation is not a defining characteristic of a residential tenancy agreement. This does not of itself mean that the degree of possession and control of the premises conferred by a particular residential tenancy agreement is irrelevant. It remains the case that very many, if not most, residential tenancy agreements confer a right of exclusive occupation, subject to a landlord’s limited right to re-enter, for instance on notice for inspection of the condition of the premises or in an emergency.

11. [41]

    An agreement under which a person lodges with another person may well, but for its exclusion, have met the definition of residential tenancy agreement in s 13 RTA read as a whole. One has to consider the text, context and purpose of the legislation, including the purpose of the exclusion of certain agreements. It is not correct to focus on the preposition “with”. One has to look at the whole construct: “an agreement under which a person … lodges with another person”. While the right to exclusive possession is not an essential characteristic of the statutory concept of a residential tenancy agreement, the consideration that the right is wholly retained by the “landlord” is not an irrelevant consideration when deciding whether an agreement is one under which a person lodges with another person. Obviously, whether that is so, depends upon the construction of the agreement.

12. [42]

    Moreover, I am not of the view that the expression “lodges with another person”, means, and only means, an agreement under which a person resides in the house or other dwelling of another person who also resides there. This would, of course, restrict agreements to which s 8(1)(c) RTA applies to agreements made between natural persons. There is nothing in the context of the RTA which excludes the operation of s 8(d) Interpretation Act 1987 (NSW) that a reference to a person does not exclude a reference to a corporation. That is to say, I would interpret “person” in s 8(1)(c) RTA as extending to a corporation at least so far as that part of the phrase “another person” is concerned; even if a corporation cannot “reside” in a dwelling house for certain statutory purposes: cf Roberts v Waverley Municipal Council (1988) 14 NSWLR 423 at 426B. The migrant families who resided in the migrant hostel in Commonwealth v Bogel were boarders even though the “landlord” was the Commonwealth.

13. [43]

    The factors considered by the Appeal Panel referrable to the terms of the residential agreement, amply supported the Appeal Panel’s conclusion that the agreement was one under which Mr Shapkin lodged with the University. The Appeal Panel’s reasons were comprehensive and carefully crafted in an appropriate way and I am not persuaded that they fell into an error of law in arriving at their conclusion. I am not satisfied their decision is otherwise affected by a question of law. I would dismiss the s 8(1)(c) grounds.

Consideration – cl 31 of the Regulation

1. [44]

   I have set cl 31 of the Regulation out at [26] above and I will not repeat it here. Mr Shapkin challenged the conclusion that the premises in which he resided were a “hall of residence” for the purpose of cl 31 on a number of grounds. I should say at the outset that his argument that the Appeal Panel could not be lawfully satisfied to the contrary appears to confuse considerations which may apply to whether jurisdiction to exercise a statutory power has been enlivened with the Appeal Panel’s task of determining the meaning (not authoritatively) of cl 31 of the Regulation and whether on the evidence before it, that clause applied to the premises where Mr Shapkin resided under his agreement with the University.

2. [45]

   His main legal argument, as I understood it, was that by its references to the University “administrating” the Darlington Terrace residences as halls of residence, it had regard to an irrelevant consideration mandatorily excluded from consideration by RTA. With respect, there is nothing in cl 31 of the Regulation which excludes the relevance of the fact that the University “administered” the Darlington Terrace residences, which it owned, as student accommodation.

3. [46]

   Mr Shapkin’s complaint about this relates to the operation of cl 31(1)(b), that is to say whether the residential premises allocated to him, which had not been shown to be “located within the institution” were “owned by the institution”. In this regard, he referred to the definition of ownership in Black’s Law Dictionary being “the bundle of rights allowing one to use, manage and enjoy property, including the right to convey it to another”. The entry is annotated with High Court authority. Mr Shapkin, however, accepted that management or administration of property were synonymous.

4. [47]

   His point seemed to be that because management or administration “is already a part of ownership element” under cl 31 of the Regulation (Plaintiff’s Written Submissions [88]) “one element cannot satisfy the other”.

5. [48]

   This argument is entirely misconceived. Ownership in cl 31(1)(b) relates to the right, title or interest of the University in the residential premises used or intended for use principally as a hall of residence. The evidence accepted at first instance (including by Mr Shapkin) is much simpler. It was proved that the University acquired the subject residential premises by purchase in 1973. Nothing more complicated was in play and there was no error of law on the part of the Appeal Panel in proceeding on this basis.

6. [49]

   The second aspect of Mr Shapkin’s argument was that even if the University owned the premises, it was still necessary that those premises be used or intended for use principally as a hall of residence for students of the institution for the purpose of student accommodation. His argument then was that use of land must comply with all the provisions of the Environmental Planning and Assessment Act 1979 (NSW) and all the planning laws made under it including any relevant standards. He made reference to a number of State Environmental Planning Policies dealing with various subject matters. Amongst these was an instrument which Mr Shapkin referred to as “TI SEPP” (the proper citation in this case could not be located in his voluminous list of authorities) which contained a definition of on campus student accommodation in s 3.3. He pointed out that it had elements in common with cl 31 of the Regulation, even if it applied only to premises located within an educational institution. A further element upon which he placed reliance was that the accommodation be “designed primarily for shared living with common spaces with shared common facilities provided for residents”. He emphasised that the residential accommodation must be designed for communal use of common spaces and that these concepts can be read into the language of cl 31 of the Regulation in relation to use or intended use. He argued that given the express language of the definition in the TI SEPP did not contain the words “administration” or “designation” as a requirement, those words cannot be read into either TI SEPP or cl 31 of the Regulation.

7. [50]

   Mr Shapkin’s argument in this regard is clearly and wholly erroneous. There is no connection between the legislative instrument he refers to as TI SEPP and cl 31 of the Regulation which applies to a property located within the University or property owned by the University which is not within its campus, leaving aside cl 31(1)(c) which is not here relevant. There is no legal relationship whatsoever between the instrument he cites and cl 31. Neither one informs the meaning of the other; neither one amends or varies the other. This proposition can be tested very simply: if one assumes that TI SEPP applies to student accommodation on the campus of the University, a hall of residence within the University which fails to comply with whatever its stipulations or requirements might be would yet be a hall of residence for the purpose of cl 31 of the Regulation, assuming that the conditions of cl 31 were themselves engaged. Other consequences might flow from non-compliance with the requirements of planning laws but the essential use of the premises would not change.

8. [51]

   One should observe, as the Appeal Panel found, that in any event, the premises the subject of these proceedings did provide for shared accommodation with some common areas, which no doubt would have provided opportunity for communal living had the residents of the particular premises chosen to avail themselves of it.

9. [52]

   I am not satisfied that there Mr Shapkin has demonstrated any error of law in the Appeal Panel’s construction of cl 31 or in their determination in relation to its application to the facts as found. I would reject his cl 31 grounds of appeal. I am satisfied that the evidence before the Appeal Panel amply justified its conclusions expressed at APJ [108] ff.

10. [53]

    In a general way, the Appeal Panel referred to Mr Shapkin’s reliance on planning and development law (at APJ [113]). The Appeal Panel concluded that:

11. [54]

    I am satisfied that this conclusion does not involve any error of law on the part of the Appeal Panel.

Other grounds

1. [55]

   I accept the argument of the University that given these conclusions, it is futile to consider the other matters relied upon by Mr Shapkin. Either conclusion whether in relation to s 8(1)(c) RTA or cl 31 of the Regulation is sufficient to dispose the whole of the appeal.

2. [56]

   I would refuse leave to ventilate any of the other grounds which in any event are somewhat discursive as set out in his summons seeking leave to appeal. I am not satisfied that Mr Shapkin has demonstrated in any way a breach of either limb of the rules of natural justice. There is nothing to suggest any apprehended or actual bias whatsoever on the part of either member of the Appeal Panel. So far as the hearing rule is concerned, the answers to the questions of law I have arrived at engage with the principle I have referred to above from Stead (at [13] above) and were I wrong about the denial of a fair opportunity to be heard, there is no point in the matter being remitted as inevitably the result would be the same.

3. [57]

   The reasons of the Appeal Panel by no stretch of the imagination fall short of the legal requirement of adequacy. They are comprehensive and fully explain the pathway by which the Appeal Panel arrived at its decision. The suggestion in Ground 8(b) that the reasons expressed are not the true reasons is entirely baseless and cannot be sustained.

4. [58]

   The decision arrived at is not only free of legal unreasonableness, in my judgment, the decision was legally correct and so far as it depends upon the application of the correctly stated law to the facts established by the evidence, the decision was reasonable and open to the Appeal Panel.

5. [59]

   There was no constructive failure to exercise jurisdiction, the substance of Mr Shapkin’s case was fully addressed in an appropriate manner in the reasons for judgment.

6. [60]

   To the extent to which Mr Shapkin raises as a ground of appeal the denial of the opportunity to issue a summons to obtain documents to advance his case based upon his understanding of planning law, I am not satisfied that it raises only questions of law. For the reasons I have rehearsed in any event, those matters were not relevant and the proposed summons had no legitimate forensic purpose as the Appeal Panel held.

Orders

1. [61]

   For these reasons I make the following orders:

   1. (1)

      Under s 83 Civil and Administrative Tribunal Act 2013 (NSW), grant leave to appeal on the s 8(1)(c) Residential Tenancies Act 2010 (NSW) and cl 31 Residential Tenancies Regulation 2019 (NSW) grounds, otherwise leave to appeal is refused.

   2. (2)

      Appeal dismissed.

   3. (3)

      Plaintiff is to pay the defendant’s costs of the Appeal.