Stuck v Hinds [2020] NSWCATAP 259

Stuck v Hinds [2020] NSWCATAP 259

The Appeal Panel refused leave and dismissed the appeal because the termination notice under s 85 of the Residential Tenancies Act 2010 (NSW) was valid, the Tribunal was required to make a termination order and had no discretion to refuse termination based on the tenants' financial position. The tenants had a reasonable opportunity to present their circumstances, an adjournment for further financial evidence could have made no difference to the outcome, the COVID-19 moratorium provisions did not apply to a pre-15 April 2020 no grounds notice under s 85, no application for a payment plan had been made, and the alleged late service of documents did not cause procedural unfairness or a...

Jurisdiction
Australia
Judgment Date
08 December 2020
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed; stay lifted; possession suspension order varied.
Legal Topics
['no Grounds Termination Notice' 'termination and Possession Orders' 'rent Arrears' 'internal Appeal' 'question of Law' 'procedural Fairness' 'covid 19 Residential Tenancy Moratorium']
['land Law' 'residential Tenancy' 'administrative Law'] ['no Grounds Termination Notice' 'termination and Possession Orders' 'rent Arrears' 'internal Appeal' 'question of Law' 'procedural Fairness' 'covid 19 Residential Tenancy Moratorium']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred by failing to offer an adjournment to enable the tenants to produce financial records relating to financial hardship.' 'Whether the Tribunal failed to afford procedural fairness by not giving the tenants an opportunity to negotiate in good faith under the COVID-19 regulations and by ordering immediate payment of rent arrears.' 'Whether the Tribunal failed to afford procedural fairness by permitting the landlords to tender and rely on evidence allegedly served late.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.']

Ratio Decidendi

The Appeal Panel refused leave and dismissed the appeal because the termination notice under s 85 of the Residential Tenancies Act 2010 (NSW) was valid, the Tribunal was required to make a termination order and had no discretion to refuse termination based on the tenants' financial position. The tenants had a reasonable opportunity to present their circumstances, an adjournment for further financial evidence could have made no difference to the outcome, the COVID-19 moratorium provisions did not apply to a pre-15 April 2020 no grounds notice under s 85, no application for a payment plan had been made, and the alleged late service of documents did not cause procedural unfairness or a...

Court Disposition

Leave to appeal refused; appeal dismissed; stay lifted; possession suspension order varied.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'The stay made on 6 October 2020 is lifted.' 'Order 3 of the orders made on 11 September 2020 is varied to read: 3. The order for possession is suspended to 18 December 2020.']