McWilliam v Chee [2024] NSWCATAP 245

McWilliam v Chee [2024] NSWCATAP 245

The Appeal Panel found that the tenants were not denied procedural fairness when the Tribunal refused to admit evidence not filed as directed, nor did the Tribunal erroneously require expert evidence. The Tribunal properly required documentary evidence in accordance with previous directions, and the onus of proof remained on the applicants. The Tribunal's discretionary decision regarding retaliatory eviction was open on the findings and material before it. No reviewable error was demonstrated, and both grounds of appeal were dismissed.

Parties
First Appellant: Jeong McWilliam; Second Appellant: Yvette Nillesen; First Respondent: Austin Kwong Chee; Second Respondent: Lyndy Ying Yan
Jurisdiction
Australia
Judgment Date
03 December 2024
Procedural Posture
Appeal / Decision of Appeal Panel of Civil and Administrative Tribunal
Outcome
Appeal dismissed
Legal Topics
Appeal, Procedural Fairness, Retaliatory Eviction, Onus of Proof, Repairs in Tenancy
Residential Tenancies Administrative Law Appeal Procedural Fairness Retaliatory Eviction Onus of Proof Repairs in Tenancy

Case Brief

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Parties

Jeong McWilliam

First Appellant

Yvette Nillesen

Second Appellant

Austin Kwong Chee

First Respondent

Lyndy Ying Yan

Second Respondent

Procedural Posture

Appeal / Decision of Appeal Panel of Civil and Administrative Tribunal

Legal Issues

  1. 1 Whether tenants were denied procedural fairness by the Tribunal's refusal to consider evidence not filed before the hearing
  2. 2 Whether the Tribunal applied a wrong principle concerning the standard of proof for repairs and retaliatory eviction under s 115 of the Residential Tenancies Act 2010 (NSW)

Ratio Decidendi

The Appeal Panel found that the tenants were not denied procedural fairness when the Tribunal refused to admit evidence not filed as directed, nor did the Tribunal erroneously require expert evidence. The Tribunal properly required documentary evidence in accordance with previous directions, and the onus of proof remained on the applicants. The Tribunal's discretionary decision regarding retaliatory eviction was open on the findings and material before it. No reviewable error was demonstrated, and both grounds of appeal were dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The order made on 1 February 2024 for suspension of the operation of the order for possession made on 30 January 2024 in matter number 2024/00013238 is discharged.