Nelson v Auberson [2019] NSWCATAP 241

Nelson v Auberson [2019] NSWCATAP 241

The appeal was dismissed because the tenants were not misled: the landlord had an available basis to seek termination for frequent non-payment of rent in the existing proceedings and the 90-day notice remained capable of supporting fresh proceedings. The duress ground failed because it depended on the rejected misleading conduct allegations and, in any event, there was no evidence of threatened or actual unlawful conduct. The Tribunal had authority to make the consent orders because the parties agreed to termination, s 81(4)(e) permitted a termination order by consent, and payment of arrears did not prevent termination by consent or based on alleged frequent non-payment of rent.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Appeal From Consent Orders Terminating a Residential Tenancy Agreement and Suspending the Date of Vacant Possession / Appeal Panel Decision
Outcome
Appeal dismissed; stay lifted; order 2 varied to substitute 1 October 2019 for 13 August 2019; otherwise orders below confirmed.
Legal Topics
['appeal From Consent Orders' 'termination of Periodic Tenancy' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'misleading Statements' 'duress' 'tribunal Authority to Make Consent Orders' 'vacant Possession']
['residential Tenancies' 'civil Procedure' 'contract / Consent Orders'] ['appeal From Consent Orders' 'termination of Periodic Tenancy' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'misleading Statements' 'duress' 'tribunal Authority to Make Consent Orders' 'vacant Possession']

Case Brief

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Procedural Posture

Appeal From Consent Orders Terminating a Residential Tenancy Agreement and Suspending the Date of Vacant Possession / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the consent orders should be set aside because the tenants were misled before consenting to them.' 'Whether the consent orders should be set aside because Ms Nelson consented under duress.' 'Whether the Tribunal had authority to make the consent orders after the tenants had paid all rent owing and the landlord had not notified the Tribunal under s 89(4)(a) of the Residential Tenancies Act 2010 (NSW).']

Ratio Decidendi

The appeal was dismissed because the tenants were not misled: the landlord had an available basis to seek termination for frequent non-payment of rent in the existing proceedings and the 90-day notice remained capable of supporting fresh proceedings. The duress ground failed because it depended on the rejected misleading conduct allegations and, in any event, there was no evidence of threatened or actual unlawful conduct. The Tribunal had authority to make the consent orders because the parties agreed to termination, s 81(4)(e) permitted a termination order by consent, and payment of arrears did not prevent termination by consent or based on alleged frequent non-payment of rent.

Court Disposition

Appeal dismissed; stay lifted; order 2 varied to substitute 1 October 2019 for 13 August 2019; otherwise orders below confirmed.

Orders

  • ['Appeal dismissed.' 'Stay of orders made by the Tribunal on 25 June 2016 is lifted.' 'Vary order 2 of the orders made by the Tribunal below on 25 June 2019 to substitute the date 1 October 2019 for the date 13 August 2019.' 'Otherwise, the orders made by the Tribunal below on 25 June 2019 are confirmed.']