Eskander v Saweris [2023] NSWCATCD 42

Eskander v Saweris [2023] NSWCATCD 42

Although the decision of 26 September 2022 was made in the tenant's absence, the tenant did not satisfy the Tribunal that his absence resulted in his case not being adequately put, because he did not explain what case he would have advanced about the rental arrears that were the subject of the Tribunal Order. The application was filed more than 6 months late, and there was no utility in extending time because the tenant had not provided submissions or evidence showing why the outcome would be different if the original decision were set aside and the hearing relisted.

Jurisdiction
Australia
Judgment Date
11 May 2023
Procedural Posture
Application to Set Aside a Tribunal Decision Pursuant to Cl 9 of the Civil and Administrative Tribunal Regulation 2022 / Written Reasons Following Dismissal of the Set Aside Application; Confirmation of Orders
Outcome
Set aside application dismissed; dismissal confirmed and original order remains in force.
Legal Topics
['set Aside Application' 'decision Made in Absence of a Party' 'extension of Time' 'service of Notices' 'recovery of Amounts Ordered to Be Paid']
['practice and Procedure' 'residential Tenancies'] ['set Aside Application' 'decision Made in Absence of a Party' 'extension of Time' 'service of Notices' 'recovery of Amounts Ordered to Be Paid']

Case Brief

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Procedural Posture

Application to Set Aside a Tribunal Decision Pursuant to Cl 9 of the Civil and Administrative Tribunal Regulation 2022 / Written Reasons Following Dismissal of the Set Aside Application; Confirmation of Orders

Legal Issues

  1. 1 ["Whether the Tribunal should set aside the decision made in the tenant's absence under cl 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022." "Whether the tenant's absence resulted in his case not being adequately put to the Tribunal." 'Whether time should be extended for the set aside application filed more than 6 months late.']

Ratio Decidendi

Although the decision of 26 September 2022 was made in the tenant's absence, the tenant did not satisfy the Tribunal that his absence resulted in his case not being adequately put, because he did not explain what case he would have advanced about the rental arrears that were the subject of the Tribunal Order. The application was filed more than 6 months late, and there was no utility in extending time because the tenant had not provided submissions or evidence showing why the outcome would be different if the original decision were set aside and the hearing relisted.

Court Disposition

Set aside application dismissed; dismissal confirmed and original order remains in force.

Orders

  • ['The order dismissing the set aside application made on 11 April 2023 is confirmed.' 'The order made on 26 September 2022 in matter RT 22/40573 remains in full force and effect.']