Hassani v Afzal [2020] NSWCATAP 219

Hassani v Afzal [2020] NSWCATAP 219

The Tribunal at first instance erred in failing to give the tenants and landlords procedural fairness, as both parties were denied the opportunity to properly present, test, and make submissions on the evidence concerning their COVID-19 impacted status. This constituted a miscarriage of hearing, warranting the orders to be set aside and the matter remitted. Further, the legal definitions required consideration of only rent paying household members' incomes, and there was evidence, although scant, that the tenants may qualify as impacted tenants.

Jurisdiction
Australia
Judgment Date
23 October 2020
Procedural Posture
Appeal / Orders on Appeal and Remittal
Outcome
Orders 1–6 from the original Tribunal decision set aside; proceedings remitted for rehearing before a differently constituted Tribunal with directions for filing and service of relevant evidence.
Legal Topics
['residential Tenancy Agreement' 'termination of Tenancy' 'covid 19 Impacted Tenancies' 'procedural Fairness' 'natural Justice' 'rent Arrears']
['land Law'] ['residential Tenancy Agreement' 'termination of Tenancy' 'covid 19 Impacted Tenancies' 'procedural Fairness' 'natural Justice' 'rent Arrears']

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Procedural Posture

Appeal / Orders on Appeal and Remittal

Legal Issues

  1. 1 ['Whether the tenants were denied procedural fairness at first instance' 'Whether tenants and/or household were impacted by COVID-19 within the meaning of the Residential Tenancies Act 2010 and Regulation 2019 (NSW)' 'Application of protections against termination for COVID-19 impacted tenancies' "Appropriateness of Tribunal's order for termination and possession"]

Ratio Decidendi

The Tribunal at first instance erred in failing to give the tenants and landlords procedural fairness, as both parties were denied the opportunity to properly present, test, and make submissions on the evidence concerning their COVID-19 impacted status. This constituted a miscarriage of hearing, warranting the orders to be set aside and the matter remitted. Further, the legal definitions required consideration of only rent paying household members' incomes, and there was evidence, although scant, that the tenants may qualify as impacted tenants.

Court Disposition

Orders 1–6 from the original Tribunal decision set aside; proceedings remitted for rehearing before a differently constituted Tribunal with directions for filing and service of relevant evidence.

Orders

  • ['Orders 1-6 made on 18 August 2020 in application RT 20/26954 set aside; proceedings remitted to Tribunal differently constituted to determine whether tenants are impacted tenants and if termination should be ordered.' 'Remitted proceedings to be determined in accordance with appeal reasons and law.' 'Directions...