Jarvis v Mansted [2018] NSWCATAP 73

Jarvis v Mansted [2018] NSWCATAP 73

The appeal was allowed because the tenants were not shown to have received notice of the 7 September 2017 hearing, their request for a convenient hearing date was wrongly treated as an adjournment application, and the refusal of the later set-aside application gave inadequate reasons by relying on that erroneous characterisation and failing to address relevant considerations. The connected claims should be reinstated and heard together de novo on the existing evidence to avoid injustice and inconsistent or issue-estoppel effects.

Jurisdiction
Australia
Judgment Date
28 March 2018
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Decision on Appeals Against Decisions Dated 7 September 2017 and 29 November 2017
Outcome
Appeal allowed; time extended; decision dated 29 November 2017 set aside; RT17/25786 reinstated and remitted with RT17/24613 for hearing de novo.
Legal Topics
['residential Tenancy Bond and Money Orders' 'notice of Hearing' 'set Aside and Reinstatement Applications' 'extension of Time' 'procedural Fairness' 'adequacy of Reasons']
['residential Tenancy' 'civil Procedure' 'administrative Law'] ['residential Tenancy Bond and Money Orders' 'notice of Hearing' 'set Aside and Reinstatement Applications' 'extension of Time' 'procedural Fairness' 'adequacy of Reasons']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Decision on Appeals Against Decisions Dated 7 September 2017 and 29 November 2017

Legal Issues

  1. 1 ['Whether the tenants had notice of the 7 September 2017 hearing before orders were made in their absence.' 'Whether the refusal of the later set-aside application involved inadequate reasons, relevant considerations being ignored, or erroneous considerations being addressed.' 'Whether denial of notice of hearing denied procedural fairness by preventing the tenants from cross-examining and making submissions.' 'Whether time should be extended for the later set-aside application and the appeals so that the connected tenancy claims could be heard together on the merits.']

Ratio Decidendi

The appeal was allowed because the tenants were not shown to have received notice of the 7 September 2017 hearing, their request for a convenient hearing date was wrongly treated as an adjournment application, and the refusal of the later set-aside application gave inadequate reasons by relying on that erroneous characterisation and failing to address relevant considerations. The connected claims should be reinstated and heard together de novo on the existing evidence to avoid injustice and inconsistent or issue-estoppel effects.

Court Disposition

Appeal allowed; time extended; decision dated 29 November 2017 set aside; RT17/25786 reinstated and remitted with RT17/24613 for hearing de novo.

Orders

  • ['To the extent it is required, extend time to lodge the appeal against the decision on 29 November 2017 in RT17/46741 to 22 December 2017 and the appeal against the decision on 7 September 2017 in RT17/25786 to 19 January 2018.' 'Appeal allowed.' 'Set aside the decision dated 29 November 2017 in RT17/46741 and in...