Barkat v Sun [2022] NSWCATCD 46

Barkat v Sun [2022] NSWCATCD 46

The application was dismissed because there was no dispute that a residential tenancy agreement subsisted between the parties, so a s 11 declaration had no foundation. Although the landlords conceded that an oral fixed term agreement was made on 26 July 2020 for 1 August 2020 to 31 July 2021, that fixed term had ended more than 7 months earlier, there was no continuing dispute about its existence or terms, and no utility or proper cause existed to order a written agreement under s 16. Section 16 could not be used to impose a new 12-month fixed term agreement with no negotiated foundation or as a remedy for alleged breach of quiet enjoyment.

Jurisdiction
Australia
Judgment Date
10 March 2022
Procedural Posture
Application Under Ss 11 and 16 of the Residential Tenancies Act 2010 (nsw) Concerning a Residential Tenancy Agreement / Remitted Redetermination by Differently Constituted Tribunal After Successful Appeal
Outcome
The application is dismissed.
Legal Topics
['residential Tenancy Agreement' 'oral Fixed Term Agreement' 'written Residential Tenancy Agreement' 'quiet Enjoyment' 'ncat Discretion']
['land Law' 'residential Tenancies'] ['residential Tenancy Agreement' 'oral Fixed Term Agreement' 'written Residential Tenancy Agreement' 'quiet Enjoyment' 'ncat Discretion']

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Procedural Posture

Application Under Ss 11 and 16 of the Residential Tenancies Act 2010 (nsw) Concerning a Residential Tenancy Agreement / Remitted Redetermination by Differently Constituted Tribunal After Successful Appeal

Legal Issues

  1. 1 ['Whether the Tribunal should declare under s 11 of the Residential Tenancies Act 2010 (NSW) that there is a residential tenancy agreement subsisting between the parties to which the Act applies.' 'Whether the Tribunal should order under s 16(1) of the Residential Tenancies Act 2010 (NSW) that the landlords prepare and enter into a written residential tenancy agreement reflecting the oral fixed term agreement made on 26 July 2020 for 1 August 2020 to 31 July 2021.' 'Whether s 16 of the Residential Tenancies Act 2010 (NSW) empowered or justified an order requiring a new 12-month fixed term agreement from the date of determination because of alleged interference with quiet enjoyment.']

Ratio Decidendi

The application was dismissed because there was no dispute that a residential tenancy agreement subsisted between the parties, so a s 11 declaration had no foundation. Although the landlords conceded that an oral fixed term agreement was made on 26 July 2020 for 1 August 2020 to 31 July 2021, that fixed term had ended more than 7 months earlier, there was no continuing dispute about its existence or terms, and no utility or proper cause existed to order a written agreement under s 16. Section 16 could not be used to impose a new 12-month fixed term agreement with no negotiated foundation or as a remedy for alleged breach of quiet enjoyment.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']