Westwell v Kitson [2018] NSWCATAP 121

Westwell v Kitson [2018] NSWCATAP 121

The Tribunal had power to make the consent orders because the parties signed a written settlement, the landlord was the legal owner and there was a signed standard form residential tenancy agreement sufficient to found jurisdiction under the Residential Tenancies Act 2010. The Federal Circuit Court family law proceedings were between different parties and did not concern termination of the tenancy for non-payment of rent, and the asserted Burns v Corbett issue did not require the Tribunal to decline jurisdiction. The appellant signed the Conciliation Agreement Form after negotiation, including as to the date for vacant possession, and did not establish duress, mistake, undue influence,...

Jurisdiction
Australia
Judgment Date
22 May 2018
Procedural Posture
Internal Appeal Under S80 of the Civil and Administrative Tribunal Act 2013 From Residential Tenancy Consent Orders / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed; stay lifted; possession order varied to suspend possession until three weeks after the date of the Appeal Panel orders.
Legal Topics
['internal Appeal' 'consent Orders' 'jurisdiction' 'residential Tenancy Termination' 'rent Arrears' 'setting Aside Settlement Agreements']
['administrative Law' 'residential Tenancies' 'civil Procedure'] ['internal Appeal' 'consent Orders' 'jurisdiction' 'residential Tenancy Termination' 'rent Arrears' 'setting Aside Settlement Agreements']

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Procedural Posture

Internal Appeal Under S80 of the Civil and Administrative Tribunal Act 2013 From Residential Tenancy Consent Orders / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal had power to make consent orders under s 59 of the Civil and Administrative Tribunal Act 2013.' 'Whether concurrent Federal Circuit Court proceedings under the Family Law Act 1975 (Cth) deprived the Tribunal of jurisdiction.' 'Whether the alleged invalidity of the residential tenancy agreement meant the Tribunal lacked power under the Residential Tenancies Act 2010.' "Whether an asserted Burns v Corbett issue concerning interstate residents affected the Tribunal's jurisdiction." 'Whether the consent orders should be set aside for lack of true agreement, duress, mistake, undue influence or other vitiating factor.' 'Whether leave to appeal should be granted on the basis of substantial miscarriage of justice.']

Ratio Decidendi

The Tribunal had power to make the consent orders because the parties signed a written settlement, the landlord was the legal owner and there was a signed standard form residential tenancy agreement sufficient to found jurisdiction under the Residential Tenancies Act 2010. The Federal Circuit Court family law proceedings were between different parties and did not concern termination of the tenancy for non-payment of rent, and the asserted Burns v Corbett issue did not require the Tribunal to decline jurisdiction. The appellant signed the Conciliation Agreement Form after negotiation, including as to the date for vacant possession, and did not establish duress, mistake, undue influence,...

Court Disposition

Leave to appeal refused; appeal dismissed; stay lifted; possession order varied to suspend possession until three weeks after the date of the Appeal Panel orders.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'The stay of the operation of Order 3 made on 1 March 2018 is lifted.' 'The orders made on 1 March 2018 are varied by varying Order 3 to specify that the order for possession is suspended until the date three weeks after the date of these orders.']