Neva Consulting Services Pty Ltd v McIntosh [2020] NSWCATAP 244

Neva Consulting Services Pty Ltd v McIntosh [2020] NSWCATAP 244

The Appeal Panel refused to extend time and dismissed the appeal because the appellant had negligible prospects of success. The evidence established the jurisdictional facts required for the Tribunal's powers under ss 47(5) and 187 of the Residential Tenancies Act 2010: the signed Residential Tenancy Agreement granted the respondent a right of occupation for value for use as a residence, the apartment was intended to be used as residential premises, and the exceptions for serviced apartments and holiday occupation did not apply. The sub-lease prohibition on use other than holiday rental did not prevent the RT Act applying because the definition turned on actual or intended use rather than...

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Application for Extension of Time and Leave to Appeal Before the Appeal Panel
Outcome
Leave to appeal refused; appeal dismissed; stay lifted.
Legal Topics
['construction and Interpretation of Residential Tenancy Agreement' 'ncat Jurisdiction' 'jurisdictional Facts' 'extension of Time to Appeal' 'leave to Appeal' 'holiday Accommodation Exception' 'serviced Apartments Exception']
['residential Tenancies' 'administrative Law'] ['construction and Interpretation of Residential Tenancy Agreement' 'ncat Jurisdiction' 'jurisdictional Facts' 'extension of Time to Appeal' 'leave to Appeal' 'holiday Accommodation Exception' 'serviced Apartments Exception']

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Procedural Posture

Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Application for Extension of Time and Leave to Appeal Before the Appeal Panel

Legal Issues

  1. 1 ['Whether the appellant should be granted an extension of time to file the Notice of Appeal out of time.' 'Whether the Tribunal had jurisdiction under the Residential Tenancies Act 2010 to make an order requiring the landlord to pay the tenant $15,000.' 'Whether the premises were residential premises and the agreement was a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010.' 'Whether the Residential Tenancies Act 2010 did not apply because the premises could only be used for holiday accommodation or were serviced apartments.' "Whether leave to appeal should be granted on the basis that the Tribunal's decision was against the weight of evidence."]

Ratio Decidendi

The Appeal Panel refused to extend time and dismissed the appeal because the appellant had negligible prospects of success. The evidence established the jurisdictional facts required for the Tribunal's powers under ss 47(5) and 187 of the Residential Tenancies Act 2010: the signed Residential Tenancy Agreement granted the respondent a right of occupation for value for use as a residence, the apartment was intended to be used as residential premises, and the exceptions for serviced apartments and holiday occupation did not apply. The sub-lease prohibition on use other than holiday rental did not prevent the RT Act applying because the definition turned on actual or intended use rather than...

Court Disposition

Leave to appeal refused; appeal dismissed; stay lifted.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'The stay order made by the Tribunal on 18 August 2020 is lifted.']