Serious v Barlow; Barlow v Serious [2020] NSWCATCD 3

Serious v Barlow; Barlow v Serious [2020] NSWCATCD 3

The ex parte orders were set aside because the tenants' absence from the earlier hearing prevented their case being put and it was preferable to determine the dispute on its merits. On the merits, although the tenants currently had no income due to COVID-19, they produced no evidence of pre-pandemic income enabling the Tribunal to find the required 25% reduction in weekly household income, so the COVID-19 protections did not apply. The tenants had breached the agreement by failing to pay rent since 25 February 2020, arrears exceeded $15,000, the termination notice was valid, the tenants had not vacated, and the extent of arrears and the parties' conduct justified termination under section...

Jurisdiction
Australia
Judgment Date
23 July 2020
Procedural Posture
Residential Tenancy Proceedings / Application to Set Aside Ex Parte Orders and Determination of Landlords' Application for Termination and Possession
Outcome
Ex parte orders set aside; residential tenancy agreement terminated; possession ordered with suspension until 13 August 2020; tenants ordered to pay occupation fees and $15,000 immediately.
Legal Topics
['setting Aside Ex Parte Orders' 'termination of Residential Tenancy Agreement' 'non Payment of Rent' 'covid 19 Residential Tenancy Protections' 'impacted Tenant' 'occupation Fee']
['residential Tenancies' 'practice and Procedure'] ['setting Aside Ex Parte Orders' 'termination of Residential Tenancy Agreement' 'non Payment of Rent' 'covid 19 Residential Tenancy Protections' 'impacted Tenant' 'occupation Fee']

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Procedural Posture

Residential Tenancy Proceedings / Application to Set Aside Ex Parte Orders and Determination of Landlords' Application for Termination and Possession

Legal Issues

  1. 1 ['Whether the ex parte orders made on 15 June 2020 should be set aside under clause 9 of the Civil and Administrative Tribunal Regulation 2013.' 'Whether the tenants were impacted tenants or a household impacted by the COVID-19 pandemic for the purposes of the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2019.' 'Whether the landlords were entitled to a termination order under section 87 of the Residential Tenancies Act 2010 for non-payment of rent.' 'What date for possession and associated payment orders should be made.']

Ratio Decidendi

The ex parte orders were set aside because the tenants' absence from the earlier hearing prevented their case being put and it was preferable to determine the dispute on its merits. On the merits, although the tenants currently had no income due to COVID-19, they produced no evidence of pre-pandemic income enabling the Tribunal to find the required 25% reduction in weekly household income, so the COVID-19 protections did not apply. The tenants had breached the agreement by failing to pay rent since 25 February 2020, arrears exceeded $15,000, the termination notice was valid, the tenants had not vacated, and the extent of arrears and the parties' conduct justified termination under section...

Court Disposition

Ex parte orders set aside; residential tenancy agreement terminated; possession ordered with suspension until 13 August 2020; tenants ordered to pay occupation fees and $15,000 immediately.

Orders

  • ['The ex parte orders made on 15 June 2019 are set aside, pursuant clause 9 of the Civil and Administrative Tribunal Regulation 2013.' 'The residential tenancy agreement is terminated in accordance with section 87 of the Residential Tenancies Act 2010 as the tenants have breached that agreement by failing to pay...