El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329

El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329

Leave to appeal was refused because Alan El Ali was never the tenant under the Residential Tenancies Act 2010 (NSW), had no requisite interest in land, and was not a necessary or proper party to the NCAT possession proceedings between the landlords and Yates Holdings Victoria Pty Limited. Section 77 did not assist him because no application had been made before the possession proceedings and, in any event, the statutory criteria were not satisfied. The Appeal Panel did not err in finding no denial of procedural fairness or practical injustice, and no proposed ground raised an issue warranting leave under s 83(1) of the Civil and Administrative Tribunal Act 2013.

Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Appeal From NSW Civil and Administrative Tribunal Appeal Panel; Application for Leave to Appeal on a Question of Law / Leave to Appeal Pursuant to S 83(1) of the Civil and Administrative Tribunal Act 2013
Outcome
Leave to appeal refused; Further Amended Summons dismissed; first plaintiff ordered to pay the defendants' costs.
Legal Topics
['judicial Review' 'appeal From NCAT Appeal Panel' 'procedural Fairness' 'opportunity to Be Heard' 'joinder of Occupant as Tenant' 'termination of Residential Tenancy' 'possession Orders' 'leave to Appeal']
['administrative Law' 'residential Tenancy Law' 'civil Procedure'] ['judicial Review' 'appeal From NCAT Appeal Panel' 'procedural Fairness' 'opportunity to Be Heard' 'joinder of Occupant as Tenant' 'termination of Residential Tenancy' 'possession Orders' 'leave to Appeal']

Case Brief

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Procedural Posture

Appeal From NSW Civil and Administrative Tribunal Appeal Panel; Application for Leave to Appeal on a Question of Law / Leave to Appeal Pursuant to S 83(1) of the Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the Appeal Panel erred in law in finding that Alan El Ali was not denied procedural fairness by not being given notice of the NCAT possession proceedings.' 'Whether Alan El Ali was a tenant, or had an interest in land, such that he was a necessary or proper party to the possession proceedings.' 'Whether s 77 of the Residential Tenancies Act 2010 (NSW) required or permitted Alan El Ali to be joined to the possession proceedings.' 'Whether the Appeal Panel erred in applying Coulton v Holcombe to the arguments advanced on appeal.' 'Whether the Appeal Panel erred in refusing to receive fresh evidence from Alan El Ali and Nathan El Ali.' 'Whether any alleged denial of procedural fairness caused practical injustice or was material.' 'Whether leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 should be granted.']

Ratio Decidendi

Leave to appeal was refused because Alan El Ali was never the tenant under the Residential Tenancies Act 2010 (NSW), had no requisite interest in land, and was not a necessary or proper party to the NCAT possession proceedings between the landlords and Yates Holdings Victoria Pty Limited. Section 77 did not assist him because no application had been made before the possession proceedings and, in any event, the statutory criteria were not satisfied. The Appeal Panel did not err in finding no denial of procedural fairness or practical injustice, and no proposed ground raised an issue warranting leave under s 83(1) of the Civil and Administrative Tribunal Act 2013.

Court Disposition

Leave to appeal refused; Further Amended Summons dismissed; first plaintiff ordered to pay the defendants' costs.

Orders

  • ['Leave to appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 is refused.' 'The Further Amended Summons filed on 2 February 2023 is dismissed.' "The first plaintiff is to pay the defendants' costs."]