Hunt v Lang [2021] NSWCATAP 361

Hunt v Lang [2021] NSWCATAP 361

The appeal was allowed because the Tribunal erred in law by not addressing the correct question under s 49(1) of the Residential Tenancies Act 2010 (NSW): whether the parties had agreed that the granny flat would be available for occupation as a residence during the tenancy and from when, and whether the landlord had taken all reasonable steps to ensure no legal impediment existed at the time of entry into the agreement. The mere presence of a secondary structure that could not legally be occupied as a residence did not itself establish breach. The Tribunal also failed to give adequate reasons for its finding of an undertaking by the appellant, including by not analysing the competing...

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision on Extension of Time and Appeal
Outcome
Time extended, appeal allowed, compensation order set aside, and proceedings remitted for rehearing by the Tribunal differently constituted.
Legal Topics
['residential Tenancies Act 2010 (nsw) S 49(1)' 'residential Premises' 'legal Impediment to Occupation as a Residence' 'internal Appeals' 'extension of Time' 'adequacy of Reasons']
['residential Tenancies' 'administrative Law' 'civil Procedure'] ['residential Tenancies Act 2010 (nsw) S 49(1)' 'residential Premises' 'legal Impediment to Occupation as a Residence' 'internal Appeals' 'extension of Time' 'adequacy of Reasons']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision on Extension of Time and Appeal

Legal Issues

  1. 1 ['Whether time should be extended for filing the Notice of Appeal filed 7 days out of time.' 'Whether the Tribunal applied the correct test in determining breach of s 49(1) of the Residential Tenancies Act 2010 (NSW).' 'Whether the Tribunal was required to determine whether the parties agreed that the granny flat would be available for use as a residence during the tenancy and from when.' 'Whether the Tribunal gave adequate reasons for finding that the appellant gave an undertaking concerning approval or use of the granny flat as a residence.' 'Whether leave to appeal was necessary if an error of law was established.']

Ratio Decidendi

The appeal was allowed because the Tribunal erred in law by not addressing the correct question under s 49(1) of the Residential Tenancies Act 2010 (NSW): whether the parties had agreed that the granny flat would be available for occupation as a residence during the tenancy and from when, and whether the landlord had taken all reasonable steps to ensure no legal impediment existed at the time of entry into the agreement. The mere presence of a secondary structure that could not legally be occupied as a residence did not itself establish breach. The Tribunal also failed to give adequate reasons for its finding of an undertaking by the appellant, including by not analysing the competing...

Court Disposition

Time extended, appeal allowed, compensation order set aside, and proceedings remitted for rehearing by the Tribunal differently constituted.

Orders

  • ['Extend time for the filing of the Notice of Appeal to 3 August 2021 on the condition that the appellant reimburses the respondent the amount of $99 being the cost of obtaining a certificate of judgment in the Local Court.' 'Allow the appeal.' 'Set aside Order 1 made on 13 July 2021 in proceedings RT 21/20082.'...