Quader v Ngo [2020] NSWCATAP 248

Quader v Ngo [2020] NSWCATAP 248

The Appeal Panel refused leave and dismissed the appeal because the Tribunal's findings that there was a signed contract for sale requiring vacant possession, a valid termination notice and an authorised agent were open on the evidence; the tenant's allegations of fraud and defective authority were unsubstantiated;...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed; stay lifted; possession order varied by suspending the order for possession to 04 December 2020.
Legal Topics
['termination and Possession of Residential Premises Following Sale' 'validity of Termination Notice' 'agent Authority Under Managing Agency Agreement' 'findings of Fact on Appeal' 'discretion to Terminate Residential Tenancy' 'rent Arrears' 'procedural Fairness' 'leave to Appeal']
['land Law' 'residential Tenancy' 'administrative Law'] ['termination and Possession of Residential Premises Following Sale' 'validity of Termination Notice' 'agent Authority Under Managing Agency Agreement' 'findings of Fact on Appeal' 'discretion to Terminate Residential Tenancy' 'rent Arrears' 'procedural Fairness' 'leave to Appeal']

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the landlord had entered into a genuine contract for the sale of the premises requiring vacant possession.' "Whether the landlord's real estate agent lacked authority to serve the notice of termination because of a defect in the managing agency agreement." "Whether the Tribunal's discretion miscarried by failing to consider the tenant's financial circumstances, health and risk of homelessness." 'Whether the Tribunal failed to consider material tendered by the tenant or denied procedural fairness.' 'Whether the Tribunal engaged in an unorthodox or unreasonable fact-finding process likely to produce an unfair result.' 'Whether the Tribunal miscalculated the rent arrears.']

Ratio Decidendi

The Appeal Panel refused leave and dismissed the appeal because the Tribunal's findings that there was a signed contract for sale requiring vacant possession, a valid termination notice and an authorised agent were open on the evidence; the tenant's allegations of fraud and defective authority were unsubstantiated; the Tribunal considered the competing hardships and did not miscarry in exercising its discretion under s 86 of the Residential Tenancies Act 2010; the tenant was afforded procedural fairness and failed to identify material evidence that would have changed the result; the decision was logical and supported by findings; and no miscalculation of rent arrears was established.

Court Disposition

Leave to appeal refused; appeal dismissed; stay lifted; possession order varied by suspending the order for possession to 04 December 2020.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'The stay made on 23 September 2020 is lifted.' 'The orders made on 1 September 2020 are varied as follows: The order for possession is suspended to 04 December 2020.']