Azeem v Dannoui [2021] NSWCATAP 12

Azeem v Dannoui [2021] NSWCATAP 12

The appeal was allowed because the Tribunal made an error of law by wrongly taking the view that the COVID-19 regulation did not protect the Tenants because of their residency status, although the regulation contained no such restriction, and because important legal and factual issues about COVID-19 protection were therefore not ventilated or determined. The decision was also affected by apprehended bias: a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial and unprejudiced mind where the member discussed substantive matters with the Landlord's representative in Mr Azeem's absence and did not disclose that discussion to him.

Jurisdiction
Australia
Judgment Date
21 January 2021
Procedural Posture
Residential Tenancy Appeal / Appeal From Termination and Possession Orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Appeal allowed; orders made on 28 July 2020 set aside; proceedings remitted to a differently constituted Tribunal at first instance for redetermination according to law.
Legal Topics
['non Payment of Rent' 'termination of Residential Tenancy Agreement' 'covid 19 Residential Tenancy Protections' 'impacted Tenant' 'apprehended Bias' 'error of Law']
['residential Tenancies' 'administrative Law' 'appeals'] ['non Payment of Rent' 'termination of Residential Tenancy Agreement' 'covid 19 Residential Tenancy Protections' 'impacted Tenant' 'apprehended Bias' 'error of Law']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal From Termination and Possession Orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by treating the COVID-19 residential tenancy regulation as not applying to the Tenants because of their residency status.' "Whether the undisclosed discussion between the Tribunal member and the Landlord's representative in the absence of Mr Azeem gave rise to apprehended bias." 'Whether the termination application should be remitted for redetermination according to law.']

Ratio Decidendi

The appeal was allowed because the Tribunal made an error of law by wrongly taking the view that the COVID-19 regulation did not protect the Tenants because of their residency status, although the regulation contained no such restriction, and because important legal and factual issues about COVID-19 protection were therefore not ventilated or determined. The decision was also affected by apprehended bias: a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial and unprejudiced mind where the member discussed substantive matters with the Landlord's representative in Mr Azeem's absence and did not disclose that discussion to him.

Court Disposition

Appeal allowed; orders made on 28 July 2020 set aside; proceedings remitted to a differently constituted Tribunal at first instance for redetermination according to law.

Orders

  • ['The appeal is allowed.' 'Orders 1, 2, 3, 4, 5 and 6 of the Orders made 28 July 2020 are set aside.' 'The proceedings are remitted to a differently constituted Tribunal at first instance for redetermination according to law.']