Zioukin v Lang [2021] NSWCATAP 162

Zioukin v Lang [2021] NSWCATAP 162

The Tribunal was required to provide written reasons after the tenant made a timely request under s 62, and its failure to do so was an error of law causing practical injustice. The tenant had been absent from the original termination hearing and had identified at least an arguable defence that the termination notice was retaliatory, so his case had not been adequately put and it would be unjust to let the decisions stand.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Internal Appeal in a Residential Tenancy Matter / Appeal Panel Determination of Appeal Against Dismissal of Set Aside Application
Outcome
Appeal allowed; set aside application granted; termination and possession application remitted for re-determination.
Legal Topics
['internal Appeal' 'failure to Provide Reasons' 'procedural Fairness' 'set Aside Application' 'termination and Possession' 'retaliatory Notice of Termination']
['land Law' 'residential Tenancy' 'administrative Law'] ['internal Appeal' 'failure to Provide Reasons' 'procedural Fairness' 'set Aside Application' 'termination and Possession' 'retaliatory Notice of Termination']

Case Brief

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Procedural Posture

Internal Appeal in a Residential Tenancy Matter / Appeal Panel Determination of Appeal Against Dismissal of Set Aside Application

Legal Issues

  1. 1 ['Whether the Tribunal made an error of law by failing to provide written reasons after a request under s 62 of the Civil and Administrative Tribunal Act 2013.' 'Whether the failure to provide reasons caused practical injustice requiring the set aside decision to be set aside.' "Whether the tenant's absence from the termination hearing resulted in his case not being adequately put to the Tribunal for the purposes of cl 9(1)(b)." 'Whether the tenant had an arguable defence that the notice of termination was retaliatory under section 115 of the Residential Tenancies Act 2010.']

Ratio Decidendi

The Tribunal was required to provide written reasons after the tenant made a timely request under s 62, and its failure to do so was an error of law causing practical injustice. The tenant had been absent from the original termination hearing and had identified at least an arguable defence that the termination notice was retaliatory, so his case had not been adequately put and it would be unjust to let the decisions stand.

Court Disposition

Appeal allowed; set aside application granted; termination and possession application remitted for re-determination.

Orders

  • ['The appeal is allowed.' 'The orders made in RT 21/01512 on 1 February 2021 are set aside.' 'The orders made in RT 20/50065 on 6 January 2021 are set aside.' "The Consumer and Commercial Division is to re-determine the respondent's application for termination and possession in accordance with such further...