Residential Tenancy Termination and Rent Dispute: Can NCAT End the Lease When District Court Proceedings About Rent and the Termination Notice Are Already on Foot, and Can the Supreme Court Intervene With a Stay and Equitable Relief Against Forfeiture?

Based on the authentic Australian judicial case Conway v Sun [2025] NSWSC 1135, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales (Common Law Division)

Presiding Judge: Walton J

Cause of Action: Interlocutory application seeking interim relief in supervisory jurisdiction, including a stay of Tribunal orders and restraint on further Tribunal orders; jurisdictional challenge to the Tribunal’s power; reliance on equitable relief against forfeiture as a further basis for interim relief

Judgment Date: 29 September 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Residential Tenancies Act 2010 (NSW)

Keyword 3: Civil and Administrative Tribunal Act 2013 (NSW) Sch 4 Pt 5 cl 5(7)

Keyword 4: Judicial review and jurisdictional error

Keyword 5: Relief against forfeiture

Keyword 6: Interlocutory injunction, serious question, balance of convenience

Background

Two tenants entered a high-value residential tenancy for a fixed term of 104 weeks, with rent starting at $5,000 per week and later increasing to $5,500 per week. Soon after the tenancy began, the tenants alleged the premises were not in the condition promised and pursued relief for repairs, rent reduction, and compensation. Their dispute moved through different forums, including proceedings in the Tribunal and then transferred proceedings and claims in the District Court. While that broader dispute was still unfolding, the landlords took steps to terminate the tenancy on the basis of rent arrears. The Tribunal made termination and possession-related orders. The tenants then came to the Supreme Court seeking urgent interim protection, arguing that the Tribunal had no jurisdiction to make the termination-related orders because related issues were already before the District Court, and further contending they should be protected by equitable relief against forfeiture while the underlying dispute was determined.

This chapter does not state the result of the Supreme Court’s interlocutory application.

Core Disputes and Claims

The dispute had two interlocking layers.

First layer, the tenancy merits dispute: the tenants’ allegations about condition of the premises, repairs, rent reduction, compensation, and statutory consumer law relief, including variation of the tenancy terms and damages.

Second layer, the urgent forum and power dispute: whether the Tribunal had jurisdiction to terminate the tenancy when District Court proceedings were already pending on issues overlapping with termination, rent payable, and the termination notice; and whether the Supreme Court should intervene urgently to prevent eviction before those issues could be properly determined.

Relief sought by the Plaintiffs in the Supreme Court included:

1. Interim relief:
   • A stay on the operation of the Tribunal’s termination and possession-related orders.
   • A restraint preventing the Tribunal from making any further orders concerning the residential tenancy agreement until further order.
2. Final relief (as framed at the interlocutory stage):
   • An order setting aside the Tribunal orders.
   • Relief against forfeiture of the residential tenancy agreement.
   • Costs.

The Defendants opposed interim relief, emphasising the statutory scheme for residential tenancy termination, the availability of internal Tribunal appeal processes, and discretionary reasons why judicial review relief should not be granted where alternative avenues existed.

Chapter 2: Origin of the Case

The relationship was not a commercial partnership, but a structured legal relationship created by a residential tenancy agreement. The tenancy was for a substantial fixed term and the rent level placed it at the premium end of the residential market. From the beginning, the tenants’ position was that the premises did not match the standard and quality represented when the lease was negotiated. Their claims evolved from practical concerns about defects and repairs into a legal dispute about rent abatement, loss of enjoyment, and the consequences of alleged misrepresentations.

The path to litigation reflected a common escalation pattern in high-stakes tenancies:

1. The tenancy begins with expectations shaped by advertising and negotiations.
2. Dissatisfaction emerges about the condition of the premises.
3. Requests for repairs and adjustments are made and disputed.
4. The dispute becomes formalised through Tribunal processes.
5. The legal framing expands to include consumer law and damages claims with monetary scale beyond the Tribunal’s limits, pushing the matter into a court forum.
6. Meanwhile, the tenancy relationship deteriorates: rent payments become contested, and the landlords seek termination.
7. Once termination orders are made, the dispute becomes urgent and existential: the immediate question becomes whether the tenants will be required to vacate before their substantive claims are heard.

The decisive moments that crystallised the Supreme Court proceeding were:

• The tenants’ decision to pursue claims and remedies beyond the Tribunal’s monetary limits, including District Court proceedings seeking damages and statutory relief.
• The landlords’ issuance of a termination notice based on rent arrears.
• The landlords’ application to the Tribunal for termination and possession, and the Tribunal’s making of termination and possession-related orders.
• The tenants’ contention that the Tribunal should not have acted because overlapping issues were already before a court, engaging a statutory “cease jurisdiction” mechanism.
• The tenants’ need for immediate protective relief to avoid the practical irreversibility of eviction before adjudication of their claims.

Chapter 3: Key Evidence and Core Disputes

Plaintiffs’ Main Evidence and Arguments

1. The residential tenancy agreement and rent structure:
   • Fixed term of 104 weeks.
   • Rent initially $5,000 per week, increasing to $5,500 per week after the first year.
2. Tribunal and District Court procedural history:
   • Tribunal application initially focused on repairs and rent abatement, including reduction to $3,000 per week from commencement until completion of required works.
   • The claim expanded to include timber flooring repairs, relocation and storage costs, alternative accommodation costs, and compensation for loss of enjoyment.
   • Transfer to the District Court due to amounts exceeding statutory limits and because claims were characterised as consumer law claims, including misleading or deceptive conduct allegations.
   • Filing of a Statement of Claim in the District Court seeking:
     • Damages for breach of the tenancy agreement.
     • Damages and compensation under s 236 of Sch 2 of the Competition and Consumer Act 2010 (Cth).
     • Orders under s 237 varying the agreement, including an assertion that no rent was payable from inception until orders.
3. The Plaintiffs’ jurisdictional case in the Supreme Court:
   • The Tribunal ceased to have jurisdiction because, at the time the landlords’ application was made to the Tribunal, an issue arising under that application was already the subject of a dispute in proceedings pending before a court, engaging Sch 4 Pt 5 cl 5(7) of the Civil and Administrative Tribunal Act 2013 (NSW).
   • The District Court proceedings raised issues about:
     • What rent was payable from the commencement of the lease.
     • Where rent should be paid.
     • Whether the termination notice should be set aside.
     • Damages for breach and alleged misleading or deceptive conduct.
   • The Tribunal’s stated view of exclusivity was said to be legally contestable, particularly where statutory exclusivity is confined.
4. Reliance on equity:
   • The Plaintiffs advanced relief against forfeiture as a further basis supporting interlocutory relief, contending that, even if statutory processes existed, the Supreme Court could grant equitable relief that the Tribunal could not.
5. Evidence about family circumstances and accommodation:
   • The Plaintiffs emphasised the premises as their family home and the disruption associated with moving, including schooling concerns.
6. Proposed conditions (as part of the interlocutory contest):
   • The Plaintiffs proposed paying part of the rent (for example, $3,000 per week) to the Defendants and paying the balance into Court, relying on an opinion about market rent.
   • Senior counsel for the Plaintiffs ultimately made a significant concession: the Plaintiffs were prepared to pay the whole sum of rent due, rather than a partial amount, to support relief against forfeiture.

Defendants’ Main Evidence and Arguments

1. The rent arrears and termination foundation:
   • Evidence from the managing agent’s affidavit quantified arrears and ongoing occupation fees.
   • The Defendants relied on non-payment of rent exceeding the relevant threshold period to support Tribunal termination.
2. The Tribunal’s statutory role and the availability of internal remedies:
   • The Defendants emphasised that residential tenancy termination orders are ordinarily dealt with in the Tribunal, and that the Plaintiffs had appeal pathways within the Tribunal structure, including seeking a stay through Tribunal mechanisms.
   • The Defendants submitted that judicial review should not be used as a de facto appeal where specialist internal appeal systems exist.
3. The “self-help” criticism:
   • The Defendants contended the Plaintiffs effectively adopted a unilateral rent abatement strategy before any formal determination of entitlement to an abatement.
4. Adequacy of damages and alternative accommodation:
   • The Defendants argued that, if the Plaintiffs ultimately succeeded in their District Court claims, damages could address loss, and that alternative accommodation was available at comparable rent levels.

Core Dispute Points

1. Statutory jurisdiction and cl 5(7) engagement:
   • Was an issue arising under the landlords’ Tribunal application already the subject of a dispute in court proceedings pending at the time, such that the Tribunal ceased to have jurisdiction?
2. The interaction between Tribunal powers under the Residential Tenancies Act 2010 (NSW) and court proceedings:
   • What is truly exclusive to the Tribunal, and what is concurrent jurisdiction?
   • Is the validity of a termination notice exclusively for the Tribunal, or merely within its jurisdiction without excluding courts?
3. Discretion to grant interlocutory relief:
   • Even if there is a serious question to be tried, should the Supreme Court refuse relief because an alternative remedy exists within the Tribunal appeal structure?
4. Equity and statutory scheme:
   • Is relief against forfeiture available in a residential tenancy context despite the statutory framework, and can that equitable remedy justify exceptional intervention?
5. Conditions and proportionality:
   • If relief is granted, what conditions are necessary to protect the landlords, particularly about payment of arrears and future rent?

Chapter 4: Statements in Affidavits

Affidavit evidence was central because neither the Plaintiffs’ key deponent nor the Defendants’ key deponent was required for cross-examination in the Supreme Court proceeding. The case therefore demonstrates how affidavit drafting can control the practical momentum of an interlocutory contest.

The Plaintiffs’ affidavits were used to build a narrative of:

• Persistent defects and unmet standards.
• A rent abatement position linked to condition and value.
• The lived reality of displacement risk, with the premises as a family home.
• The procedural legitimacy of the District Court proceedings as a genuine forum for overlapping issues.

The Defendants’ affidavit evidence was used to build a competing narrative of:

• Objective rent arrears and statutory termination triggers.
• Availability of alternative accommodation undermining irreparable harm.
• The Plaintiffs’ strategic choices, including not pursuing internal Tribunal appeal routes, which was framed as a reason to deny discretionary relief.

The boundary between fact and advocacy in affidavit practice is often revealed through specificity. In this case, examples included:

• Quantified arrears and dates framing the legal threshold for termination.
• Specific descriptions of alternative properties inspected and rejected, used to suggest selectiveness.
• The Plaintiffs’ framing of condition concerns, which the Court later assessed as potentially “exaggerated” on the available evidence, demonstrating how overstatement at interlocutory stage can create credibility drag even without cross-examination.

Strategic intent behind procedural directions about affidavits:

• The Court’s acceptance of affidavit-only resolution at the interim stage reflects a pragmatic focus: the question was not the full merits of the tenancy dispute, but whether there was a serious question and whether the balance of convenience justified urgent protection.
• The Court’s treatment of an asserted market rent opinion as non-expert highlights a recurring procedural warning: if a party wants the Court to rely on valuation or specialised opinion in urgent applications, the evidence must meet the standards of expert evidence, including compliance with the expert code of conduct and proper foundational reasoning.

Chapter 5: Court Orders

Before the final hearing of the interlocutory application, the case involved procedural arrangements and directions typical of urgent supervisory and injunctive proceedings:

• Filing and service of an amended summons seeking interim and final relief.
• Filing of a notice of motion seeking interim orders corresponding to the amended summons.
• Exchange and reliance on affidavit material by each side.
• Oral submissions refining the interim relief basis, including an explicit reliance on relief against forfeiture as a further basis for the stay.
• A direction for the Plaintiffs to bring in short minutes of order reflecting the Court’s decision within 24 hours of publication of the reasons, reflecting that the operative orders were to be settled promptly after reasons were delivered.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing had the intensity of an “ultimate showdown” not because witnesses were cross-examined, but because the law–fact interface was unforgiving. One side argued that the Tribunal’s termination machinery should proceed in the ordinary way, with appeals handled internally. The other side argued that the Tribunal had no jurisdiction at all because Parliament itself had created a jurisdiction “switch”: once overlapping court proceedings exist, the Tribunal must stop.

Process Reconstruction: Live Restoration

The hearing unfolded as a structured contest over three interlocutory pillars drawn from Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57:

1. Serious question to be tried or prima facie case.
2. Whether damages are an adequate remedy.
3. Balance of convenience.

Within that framework, the Plaintiffs presented two bases for interim relief:

• Judicial review based on jurisdictional error: the Tribunal orders were invalid because the Tribunal lacked jurisdiction.
• A stay pending determination of relief against forfeiture: equity could restore the tenancy even if statutory mechanisms were in play, and the Tribunal could not grant that remedy.

The Defendants’ strategy was to pull the case back into the statutory ecosystem:

• The Tribunal’s specialist role and appeal pathways should be respected.
• Judicial review is discretionary and should not be used as an alternative to appeal.
• Even if the Plaintiffs can articulate an arguable jurisdictional issue, the Court should refuse relief unless exceptional circumstances are demonstrated.

A practical turning point in the logic contest was conditions. Equity is not granted on slogans; it is granted on terms. When relief against forfeiture is invoked, courts commonly require arrears and ongoing rent to be secured. The Plaintiffs’ willingness to pay full rent due became central, because it transformed the case from “tenant seeks to hold property while withholding rent” into “tenant seeks to preserve home while offering to put the landlord back into the financial position the forfeiture was meant to secure”.

Core Evidence Confrontation

The decisive evidence confrontation was not about the physical condition of the premises in a forensic sense, but about:

• Whether rent arrears existed as an objective foundation for termination.
• Whether the Plaintiffs’ withholding of rent was defensible at the interlocutory stage.
• Whether the Plaintiffs could, as a matter of practical capacity, cure the breach and keep paying rent.
• Whether alternative accommodation evidence reduced the claim of irreparable harm.

The Court treated the condition complaints with measured scepticism on the existing record, indicating that the Plaintiffs’ characterisation appeared “somewhat exaggerated” on the evidence, yet still accepted that the premises was their home and that displacement risk mattered.

A second confrontation concerned the Plaintiffs’ proposed partial payment regime, supported by a rent opinion. The Court declined to treat that opinion as expert evidence, gave it limited weight, and indicated that partial payment was not sufficient for relief against forfeiture even on an interim basis. That refusal illustrates a broader lesson: when equity is sought to prevent eviction, a party should expect the Court to prioritise the protection of the other side’s financial entitlement, not a contested interim re-pricing of the tenancy.

Judicial Reasoning

Walton J’s reasoning shows a careful separation between:

• The question of whether the Plaintiffs might ultimately succeed on jurisdiction and equity.
• The question of whether the Court should grant immediate protective relief now, despite the existence of internal Tribunal appeal avenues.

The Court held there was at least a serious question to be tried on the jurisdictional issue concerning cl 5(7), and also a serious question that relief against forfeiture may be available in a residential lease context notwithstanding the statutory framework. That second finding mattered because it created an “exceptional circumstances” pathway to justify immediate Supreme Court intervention rather than requiring the Plaintiffs to pursue Tribunal appeals first.

The Court also reasoned that, although alternative remedies were relevant discretionary factors, the Tribunal appeal structure could not deal with the equitable relief against forfeiture point, and that limitation supported Supreme Court involvement.

Judicial Original Quotation Principle

The Court’s central statutory hinge was the “cease jurisdiction” mechanism:

“If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.”

This statement was determinative because it frames jurisdiction as conditional. The Court treated the provision as capable of operating even where there might be debate about whether the issue is properly before the court, and treated the existence of overlapping court issues as sufficient to ground an arguable case that the Tribunal should have stopped.

The Court’s second hinge was equity’s role in tenancy forfeiture:

“The only relevant breach concerns payment of rent. Whilst the bases for the non-payment of rent advanced by [the First Plaintiff] as to the state of the premises appears on the evidence to be somewhat exaggerated, any arrears determined to be due could, on the evidence, be made good and the rent paid on an ongoing basis.”

This statement was determinative because it identifies the equity condition: forfeiture for non-payment is treated as security for rent, and if the tenant can cure arrears and pay going forward, equity may intervene. The Court’s characterisation of exaggeration did not defeat relief; the ability to pay and cure was the crucial lever.

Chapter 7: Final Judgment of the Court

The Supreme Court’s reasons addressed an interlocutory application. The Court indicated that the Plaintiffs had demonstrated a proper basis for interim relief, subject to conditions designed to protect the Defendants.

The formal orders were to be settled through short minutes. The Court ordered:

• The Plaintiffs shall bring in short minutes of order reflecting the Court’s decision within 24 hours of publication of the decision.

Because the published reasons indicate that relief would be granted “subject to conditions”, but the short minutes were to “reflect this decision”, the operative detail of the stay and any restraint would be finalised through the short minutes process rather than being fully set out in the reasons excerpt alone. The reasons, however, make clear that any interim protection was tied to financial conditions, including payment of rent arrears and ongoing rent, rather than a partial payment regime.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This chapter disassembles the decision using the Five-Link Structure:

Statutory Provisions → Evidence Chain → Judicial Original Quotation → Losing Party’s Reasons for Failure → Outcome Logic

The mandated output order within this chapter is:
Special Analysis → Judgment Points → Legal Basis → Evidence Chain → Judicial Original Quotation → Analysis of the Losing Party’s Failure

Special Analysis

This case is jurisprudentially valuable because it is a modern example of two foundational Australian legal ideas colliding in an urgent residential setting:

1. Statutory architecture and supervisory jurisdiction are not merely abstract constitutional concepts. They can decide whether a family must leave their home before any court hears the substance of their claims.

2. Equity remains operational alongside comprehensive statutory schemes unless clearly excluded. Relief against forfeiture is not “only for commercial leases” as a matter of instinct. The Court treated the possibility of equitable relief in a residential lease as a serious question to be tried, particularly where the agreement contains no provision dealing with forfeiture relief and where the tenant’s capacity to cure default is evident.

Most importantly, the case illustrates a litigation truth: urgent interim relief often turns on what a party is willing to do now, not what they say should happen later. The Plaintiffs’ concession about paying the whole rent due was “instrumental” to the Court’s analysis. In other words, equity required the Plaintiffs to behave as if they intended to perform, not merely to litigate.

Judgment Points

1. The Court treated cl 5(7) as a true jurisdictional switch, not a discretionary preference.
   • The Court held there was a serious question to be tried that the Tribunal ceased jurisdiction once it became aware of pending court proceedings where an issue arising under the Tribunal application was the subject of dispute in that court.
2. The Court accepted there was substance in challenging claims of Tribunal exclusivity.
   • The Tribunal’s reasons suggested it was the only forum that could make termination orders, and treated that as supporting continued jurisdiction. The Supreme Court signalled “real force” in the Plaintiffs’ contention that statutory exclusivity is confined, particularly where exclusivity is expressly stated, such as recovery of possession under s 119.
3. The Court treated relief against forfeiture as potentially available in residential leases.
   • Drawing from authorities discussing leases generally, the Court considered the principles to apply beyond the commercial context and to potentially extend to residential tenancy forfeiture for non-payment of rent.
4. The Court’s balancing exercise gave weight to the home and family context without ignoring credibility risks.
   • The Court acknowledged the premises as the Plaintiffs’ home and the disruption to children’s schooling, including exam context, while still noting doubts about the objectivity of the Plaintiffs’ claims about alternative accommodation.
5. The Court identified exceptional circumstances justifying departure from the usual “appeal first” approach.
   • The Defendants relied on authority emphasising that judicial review is discretionary and usually refused where a specialist internal appeal exists. The Court accepted those principles as generally correct but found exceptional circumstances because the Tribunal appeal structure could not address relief against forfeiture and because jurisdictional determination by the Supreme Court would be ultimately determinative.
6. Conditions were central: the Court declined to allow interim relief to be purchased by partial rent.
   • The Plaintiffs’ attempt to pay only part of the rent and pay the remainder into Court did not meet the Court’s view of what relief against forfeiture requires at the interim stage, particularly given the limited weight placed on the rent opinion.
7. The Court emphasised proper proof standards even in urgent applications.
   • The Court refused to treat a rent opinion as expert evidence due to non-compliance and limited foundations, illustrating that urgency does not excuse evidentiary discipline.
8. The Court’s analysis implicitly rejected “self-help rent abatement” as an interim shield against termination.
   • Even where condition issues were alleged, the Court treated the non-payment breach as the relevant forfeiture trigger and focused on cure and future performance rather than validating unilateral withholding as a litigation tactic.

Legal Basis

Key statutory provisions and doctrines referred to or materially engaged included:

1. Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 Pt 5 cl 5(7)
   • Operative jurisdiction rule: where a relevant issue is already in dispute in pending court proceedings at the time the Tribunal application is made, the Tribunal ceases jurisdiction upon becoming aware.
2. Residential Tenancies Act 2010 (NSW)
   • Termination and dispute mechanisms, including the statutory structure around termination orders and disputes about termination notices.
   • The Court treated statutory exclusivity as confined to particular categories, and relied on authority emphasising that, outside certain matters, overlap exists between courts and the Tribunal.
3. Interlocutory injunction principles
   • Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57: serious question, adequacy of damages, balance of convenience.
4. Discretionary refusal of judicial review where alternative remedies exist
   • Ballam v Higgins (1986) 17 IR 131; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (NSW) (2001) 53 NSWLR 559; Weinel v Judge Parsons (1994) 62 SASR 50; Black v Hunter New England Health Service [2010] NSWSC 1252; Johnston v Boyd [2023] NSWSC 194.
5. Relief against forfeiture in lease contexts
   • Sneakerboy Retail Pty Ltd (t/as Sneakerboy) v Georges Properties Pty Ltd [2020] NSWSC 996; Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; Minister for Lands & Forests v McPherson (1991) 22 NSWLR 687.

Evidence Chain

The Court’s “Conclusion = Evidence + Statutory Provisions” pathway can be reconstructed as follows:

1. Evidence of pending court proceedings:
   • District Court proceedings existed before the Tribunal termination application was made.
   • Those proceedings raised issues about rent payable, payment destination, setting aside the termination notice, damages, and statutory consumer law relief, plausibly overlapping with issues arising under the termination application.
2. Statutory trigger:
   • If the overlap threshold is met, cl 5(7) produces a jurisdictional consequence: the Tribunal ceases jurisdiction upon becoming aware.
3. Evidence of arrears and termination orders:
   • Objective rent arrears were alleged and quantified.
   • The Tribunal made termination and possession-related orders on the basis of non-payment.
4. Evidence about remedy adequacy:
   • The Defendants pointed to alternative accommodation and the possibility of damages.
   • The Plaintiffs pointed to irreversibility of eviction and home disruption, including children’s schooling.
5. Evidence about capacity to cure breach:
   • The Court treated the Plaintiffs as able to make good arrears and continue paying rent, reinforced by the Plaintiffs’ concession to pay full rent due.
6. Evidence quality control:
   • A rent opinion was not accepted as expert evidence, limiting reliance on interim rent re-assessment.
7. Remedy gap:
   • Tribunal appeal mechanisms existed, but the Tribunal could not provide relief against forfeiture, creating a gap that supported Supreme Court intervention.

Judicial Original Quotation Principle

The Court’s synthesis of overlap and jurisdiction was anchored by authority emphasising overlapping jurisdiction between courts and the Tribunal:

“Save in respect of certain matters … the Tribunal does not have exclusive jurisdiction in relation to disputes concerning residential tenancy agreements … Because of the potentially overlapping jurisdictions … Pt 5 of Sch 4 of the CAT Act contains provisions which address the relationship between [the Tribunal] and courts … Where, however, an application is made to [the Tribunal] … and there are pending proceedings before a court, on becoming aware of those court proceedings, [the Tribunal] ceases to have jurisdiction to hear or determine the issue.”

This was determinative because it reframed the dispute away from a simplistic “Tribunal only” narrative. It established that overlap is normal, and the statute manages overlap through mechanisms like cl 5(7). Once overlap is accepted as a structural fact, the Plaintiffs’ jurisdictional argument becomes legally coherent rather than opportunistic.

The Court’s equity reasoning turned on the long-established view of forfeiture as security:

“The granting of relief against forfeiture is discretionary … the power to re-enter or forfeit for non-payment of rent is regarded as being in substance security for the rent. Provided the lessor … can be put in the same position as before the forfeiture … the Court will usually grant relief against forfeiture upon payment of rent, costs, interest and other expenses … If those terms are offered, it is only in a rare case that the Court would refuse relief against forfeiture.”

This was determinative because it reveals the Court’s practical moral logic: equity will not let forfeiture become a windfall where the landlord’s legitimate financial protection can be satisfied. In this case, the condition focus meant the dispute was not “should rent be $3,000 or $5,500 today”, but “will the landlord be protected while the Court decides the bigger dispute”.

Analysis of the Losing Party’s Failure

At the interlocutory stage, “failure” is not necessarily final defeat on the merits; it is failure to carry the discretionary and evidentiary burden needed to block urgent interim protection.

The Defendants’ opposition encountered the following weaknesses:

1. The alternative remedy argument was strong but incomplete.
   • The line of authority discouraging judicial review as an alternative to appeal is well-established. However, the Court accepted that the Tribunal appeal structure could not address relief against forfeiture, creating a remedy gap that reduced the persuasive force of “appeal first”.
2. The exclusivity narrative was legally contestable.
   • Where statutory exclusivity exists, it is usually explicit. The Court treated the Plaintiffs’ challenge to broad exclusivity claims as having real force, particularly given appellate authority emphasising overlapping jurisdiction.
3. The balance of convenience could not ignore home displacement.
   • Even if alternative accommodation exists in theory, eviction has a qualitative impact that damages may not readily neutralise in the interim, particularly in a family context. The Court accepted the significance of the premises as the Plaintiffs’ home while also scrutinising the objectivity of their accommodation claims.
4. The Court’s conditions logic limited the Defendants’ “self-help” critique.
   • The Defendants’ criticism that the Plaintiffs adopted unilateral rent abatement was relevant, but the Plaintiffs’ concession to pay full rent due shifted the equity and convenience analysis. Once the landlord’s security is offered, the “self-help” critique loses some of its practical urgency for interim relief, even if it may still matter on final merits.
5. The Court did not accept a partial-rent interim compromise as sufficient.
   • The Plaintiffs’ partial payment proposal failed, but the Court’s reasoning reveals why the Defendants’ position also could not prevail entirely: the Court preferred a more protective financial condition rather than outright refusal of a stay, indicating that proper landlord protection could coexist with interim tenant protection.

Implications

1. If you are disputing rent because you believe the premises are defective, the law rarely rewards unilateral withholding as a long-term strategy. Courts tend to focus on whether you can meet your payment obligations while the dispute is determined, or at least secure the other side against loss.

2. Forum pathways matter as much as merits. A party can have a strong substantive claim and still lose the urgent application if they cannot show why the usual appeal routes are inadequate in their specific circumstances.

3. Equity is not a magic escape hatch, but it remains powerful. Relief against forfeiture tends to be available where the landlord can be put back into the position the forfeiture clause is meant to secure, especially where the tenant can cure arrears and pay going forward.

4. Your evidence must be disciplined even under pressure. If you want a court to rely on valuation or market rent opinions, you should expect the court to require properly prepared expert evidence. Urgency does not lower proof standards; it only shortens the runway.

5. Litigation is ultimately about choices. In urgent cases, what you offer now can matter more than what you promise later. A credible, immediate plan to pay arrears and keep paying can transform the court’s view of risk, fairness, and convenience.

Q&A Session

Q1: If a tenant has a damages claim against a landlord, can the tenant stop paying rent until the claim is determined?

A1: In many cases, withholding rent as a unilateral strategy tends to carry relatively high risk. Courts and tribunals usually treat rent payment obligations as continuing unless and until a lawful adjustment is made. A tenant may pursue formal remedies such as rent reduction orders, compensation, or damages, but non-payment can trigger termination mechanisms. Where equitable relief is sought, the court commonly focuses on whether the tenant can cure arrears and secure ongoing payment rather than validating unilateral withholding.

Q2: If the Tribunal has made termination orders, is the best strategy always to appeal within the Tribunal system rather than go to the Supreme Court?

A2: Often, an internal appeal is the normal and efficient pathway, and courts regularly exercise discretion to refuse judicial review where specialist appeal avenues exist. However, it is not absolute. Where the Supreme Court is asked to address a jurisdictional question that may be determinative, or where a remedy is sought that the Tribunal cannot grant, such as relief against forfeiture, a party may have a stronger basis to seek Supreme Court intervention. Whether that is appropriate depends on the precise statutory framework and the facts.

Q3: What makes a case “exceptional” enough for a court to grant a stay against Tribunal orders?

A3: The combination of factors matters. A serious question about jurisdiction is one factor, but not always sufficient on its own. Courts also consider irreversibility of harm, adequacy of damages, and balance of convenience. A case may be more likely to be treated as exceptional where eviction would cause significant disruption not readily compensated by damages, where there is a meaningful remedy gap in the specialist tribunal system, and where conditions can be imposed to protect the other party, especially by securing arrears and ongoing payments.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Residential tenancy dispute with overlapping court proceedings, urgent stay application, supervisory jurisdiction challenge, and equitable relief against forfeiture

Judgment Nature Definition: Interlocutory judgment determining interim relief principles and directing short minutes of order

2. Self-examination of Core Statutory Elements

Execution Instruction Applied: This case is best aligned with Category ⑨ Civil Litigation and Dispute Resolution, because the decisive contest concerned jurisdiction, forum overlap, interim relief, and procedural pathways. The test standards below are for reference only, are not absolute, and must be applied to the specific facts and statutory setting of any matter.

⑨ Civil Litigation and Dispute Resolution

Core Test: Has the Limitation Period Expired?

1. Identify the cause of action with precision.
   • Contract claims commonly attract a limitation period that is often 6 years in many Australian jurisdictions for actions founded on simple contract, subject to local legislation and the nature of the claim.
   • Consumer law claims may have distinct time limits depending on remedy type and statutory framework.
   • Judicial review applications can involve strict time considerations, sometimes framed by rules of court or discretionary delay principles rather than fixed limitation periods.
2. Identify when the cause of action accrued.
   • For breach of contract, accrual often occurs at the time of breach, not when loss is fully realised.
   • For misleading or deceptive conduct claims, accrual may align with when loss or damage is suffered.
3. Consider postponement, extension, or equitable doctrines.
   • Some limitation statutes permit extension where latent damage is discovered late or where disability applies.
   • Equitable relief can involve separate considerations, including laches and acquiescence.

Risk indicator: delay tends to increase risk, particularly where urgent interim relief is sought and the applicant must persuade a court that urgency is real and not self-created.

Core Test: Does the Court Have Jurisdiction Over the Matter?

1. Identify the forum’s source of power.
   • For courts: statutory jurisdiction and, for superior courts, supervisory jurisdiction over tribunals, including jurisdictional error review.
   • For tribunals: statutory conferral, including conditions that may remove or suspend jurisdiction, such as pending proceedings provisions.
2. Identify whether the dispute is allocated exclusively to one forum.
   • Exclusivity must usually be clear.
   • Overlap can exist; legislatures often create mechanisms to manage overlap.
3. Apply any “pending proceedings” provisions that alter jurisdiction.
   • Identify whether an issue arising under the tribunal application is already the subject of dispute in court proceedings pending at the relevant time.
   • Determine when the tribunal became aware, because some provisions trigger cessation “on becoming aware”.

Risk indicator: arguing exclusivity without textual foundation tends to be high risk, especially where appellate authority confirms overlapping jurisdiction managed by statutory coordination rules.

Core Test: Has the Duty of Discovery and Disclosure of Evidence Been Satisfied?

1. Identify what procedural stage you are at.
   • Interlocutory applications often proceed on affidavit evidence with limited disclosure.
   • Final hearings commonly require fuller disclosure, whether by formal discovery or subpoena processes.
2. Identify the documents central to the dispute.
   • The agreement and variations.
   • Notices, correspondence about repairs, and records of complaints and responses.
   • Payment records, rent ledgers, and bank records.
   • Advertising representations and pre-contract communications.
3. Ensure evidence presentation is procedurally compliant.
   • Affidavits should exhibit documents properly.
   • Expert opinion must comply with expert evidence rules and codes of conduct.

Risk indicator: reliance on valuation or technical opinion without proper expert compliance tends to be treated with limited weight, which can undermine interim conditions proposals.

3. Equitable Remedies and Alternative Claims

Execution Instruction Applied: Even where statutory law provides a structured pathway, parties should consider whether equitable doctrines provide alternative or supplementary relief. This does not guarantee success; it identifies plausible paths.

Promissory or Proprietary Estoppel

1. Was there a clear and unequivocal promise or representation?
   • In tenancy contexts, representations might arise from advertising, negotiations, or assurances about condition, repairs, or amenity.
2. Was there reliance and detriment?
   • Reliance could include entering the tenancy, paying premium rent, relocating family, or incurring fit-out or moving costs.
   • Detriment could include financial loss, disruption, or opportunity cost.
3. Would it be unconscionable to permit departure from the promise?
   • Courts assess the totality of conduct, including whether the promisor encouraged reliance.

Potential outcome: estoppel may support remedial flexibility, including preventing a party from insisting on strict rights where that would be unconscionable, though relief is tailored and not automatic.

Unjust Enrichment or Constructive Trust

In a typical residential tenancy, constructive trust is less common than in property contribution disputes, but unjust enrichment concepts can arise where:

1. One party confers a benefit at their expense.
   • Example: tenant funds substantial improvements that the landlord retains.
2. Retention without compensation is against conscience.
   • This depends on knowledge, encouragement, and the contractual allocation of responsibility.

Potential outcome: restitutionary relief may be arguable, but in tenancy disputes it is often secondary to contractual and statutory remedies.

Procedural Fairness and Jurisdictional Error

Where a tribunal decision is challenged:

1. Was the statutory precondition for jurisdiction satisfied?
   • For example, pending court proceeding provisions that remove jurisdiction.
2. Were parties afforded a fair opportunity to be heard on the jurisdiction issue?
   • Even where statutory removal is objective, the tribunal must address submissions according to law.
3. Is there an apprehension of bias or a failure to consider a mandatory relevant consideration?
   • These can support jurisdictional error arguments in appropriate cases.

Potential outcome: if jurisdictional error is established, the decision may be set aside and remitted, but remedies are discretionary and context-sensitive.

Abuse of Process Concepts

Where parallel proceedings exist:

1. Is a party attempting to re-litigate the same issue in multiple forums?
2. Is the parallel litigation oppressive or unfair?
3. Does the statutory scheme expressly manage overlap, making abuse arguments weaker?

Potential outcome: courts may control proceedings to prevent unfair duplication, but statutory overlap management rules are often the primary guide.

4. Access Thresholds and Exceptional Circumstances

Execution Instruction Applied: Identify hard thresholds and exceptional channels, expressed in non-absolute language.

Regular Thresholds

1. Time limits to commence or respond:
   • Tribunal and court processes often have strict filing or appeal periods.
   • Delay can be fatal to urgent interim applications because it weakens claims of urgency and irreparable harm.
2. Jurisdictional monetary thresholds:
   • Tribunal monetary limits can force transfer to courts for higher-value claims.
3. Termination triggers:
   • Residential tenancy termination may be grounded on thresholds such as rent arrears exceeding a statutory minimum period, depending on the specific provision invoked.

Exceptional Channels

1. Where a tribunal’s jurisdiction is removed by a pending court proceeding provision:
   • The applicant may argue the tribunal must cease jurisdiction once aware, even if there is debate about whether the court proceeding is properly constituted, depending on construction.
2. Where an equitable remedy is unavailable in the specialist tribunal:
   • A superior court may be more willing to intervene if the remedy gap is real and the applicant can offer protective conditions.
3. Where eviction would cause harm not readily compensated by damages:
   • The balance of convenience may favour a stay if displacement would disrupt schooling, health, or stability, although courts will scrutinise whether alternative accommodation is realistically available.

Suggestion: Do not abandon a potential claim simply because a standard pathway exists. Carefully compare your circumstances against statutory coordination provisions, remedy availability gaps, and the practical irreversibility of harm. These factors can be decisive in urgent applications.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in legal submissions or debates involving:
– The construction and operation of Sch 4 Pt 5 cl 5(7) of the Civil and Administrative Tribunal Act 2013 (NSW) in managing overlap between courts and the Tribunal.
– The circumstances in which the Supreme Court may grant interim relief against Tribunal orders despite the availability of internal appeal mechanisms, particularly where equitable relief against forfeiture is engaged.
– The application of relief against forfeiture principles to leases generally and the arguability of their extension to residential leases.

Citation Method:

As Positive Support:
– Where your matter involves pending court proceedings overlapping with a tribunal application and a statutory cessation-of-jurisdiction provision, citing this authority can strengthen an argument that the tribunal lacked jurisdiction once aware of the court proceedings.

As a Distinguishing Reference:
– If the opposing party cites this case, you may emphasise differences such as absence of a remedy gap, lack of capacity to cure arrears, absence of genuine overlap issues, or factual features undermining exceptional circumstances.

Anonymisation Rule:
– Do not use real names of parties. Use procedural titles such as Plaintiffs and Defendants.

Conclusion

This decision shows how Australian courts balance statutory structure, practical justice, and equity when a family home is at stake and forum overlap threatens to produce irreversible consequences before the merits are heard. The golden thread is that courts are most willing to protect a party urgently when that party can also protect the other side against loss.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Conway v Sun [2025] NSWSC 1135), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article is original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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