Wolfson v Bradley [2020] NSWCATAP 266

Wolfson v Bradley [2020] NSWCATAP 266

The Appeal Panel held that the Tribunal made no error of law. The late amendment application was properly refused having regard to lateness and prejudice; the breach notices were not non-payment termination notices because they did not require the tenants to vacate and only warned that a termination notice could later issue; cl 41C of the Residential Tenancies Regulation 2019 (NSW) did not apply to the s 84 fixed-term termination notice; and the finding that the notice was not retaliatory was not against the weight of the evidence because the statutory reasons in s 115(2) were not established and the landlords complied with the 90-day requirement in cl 41D.

Jurisdiction
Australia
Judgment Date
11 December 2020
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on the Papers From a Consumer and Commercial Division Decision Dismissing an Application for a Declaration That a Termination Notice Had No Effect Because It Was Retaliatory
Outcome
Leave to appeal refused and appeal dismissed; no order as to costs.
Legal Topics
['fixed Term Tenancy Termination Notices' 'covid 19 Residential Tenancy Moratorium' 'retaliatory Eviction' 'leave to Appeal' 'questions of Law' 'substantial Miscarriage of Justice']
['residential Tenancy Law' 'civil and Administrative Tribunal Procedure'] ['fixed Term Tenancy Termination Notices' 'covid 19 Residential Tenancy Moratorium' 'retaliatory Eviction' 'leave to Appeal' 'questions of Law' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on the Papers From a Consumer and Commercial Division Decision Dismissing an Application for a Declaration That a Termination Notice Had No Effect Because It Was Retaliatory

Legal Issues

  1. 1 ["Whether the Tribunal erred in refusing the tenants' application to amend their application." "Whether the landlords' breach notices were non-payment termination notices under s 88 of the Residential Tenancies Act 2010 (NSW)." 'Whether cl 41C of the Residential Tenancies Regulation 2019 (NSW) applied to a termination notice issued under s 84 of the Residential Tenancies Act 2010 (NSW).' "Whether the Tribunal's finding that the termination notice was not retaliatory was against the weight of the evidence."]

Ratio Decidendi

The Appeal Panel held that the Tribunal made no error of law. The late amendment application was properly refused having regard to lateness and prejudice; the breach notices were not non-payment termination notices because they did not require the tenants to vacate and only warned that a termination notice could later issue; cl 41C of the Residential Tenancies Regulation 2019 (NSW) did not apply to the s 84 fixed-term termination notice; and the finding that the notice was not retaliatory was not against the weight of the evidence because the statutory reasons in s 115(2) were not established and the landlords complied with the 90-day requirement in cl 41D.

Court Disposition

Leave to appeal refused and appeal dismissed; no order as to costs.

Orders

  • ['Leave to appeal is refused;' 'The appeal is dismissed;' 'No order as to costs.']