Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317

Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317

Section 154E of the Residential Tenancies Act 2010 (NSW) does not affect the mandatory operation of s 85(3). The matters listed in s 154E are directed to the exercise of discretionary termination powers and are extraneous to the preconditions in s 85(3). There was therefore no inconsistency between ss 85(3) and 154E requiring the application of s 137, and the Tribunal was correct to make the termination orders once the requirements of s 85(3) were satisfied.

Jurisdiction
Australia
Judgment Date
11 December 2017
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Termination of Social Housing Tenancy Agreements / Court of Appeal From Supreme Court Common Law Division Decision on Appeal From NSW Civil and Administrative Tribunal Proceedings
Outcome
Leave to appeal granted; appeal allowed; Supreme Court Common Law Division orders set aside; NCAT order for possession directed to take effect on 22 December 2017.
Legal Topics
['termination of Periodic Residential Tenancy Agreement' 'social Housing Tenancy Agreement' 'mandatory and Discretionary Powers' 'residential Tenancies Act 2010 (nsw), Ss 85(3), 137, 154 E and 155' 'nsw Civil and Administrative Tribunal Termination Orders']
['residential Tenancies' 'social Housing' 'statutory Interpretation' 'administrative Law'] ['termination of Periodic Residential Tenancy Agreement' 'social Housing Tenancy Agreement' 'mandatory and Discretionary Powers' 'residential Tenancies Act 2010 (nsw), Ss 85(3), 137, 154 E and 155' 'nsw Civil and Administrative Tribunal Termination Orders']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Termination of Social Housing Tenancy Agreements / Court of Appeal From Supreme Court Common Law Division Decision on Appeal From NSW Civil and Administrative Tribunal Proceedings

Legal Issues

  1. 1 ['Whether the NSW Civil and Administrative Tribunal is required to consider the matters in Residential Tenancies Act 2010 (NSW), s 154E(1) when exercising its power under s 85(3) in relation to termination of a social housing tenancy agreement.' 'Whether s 154E qualifies the apparently mandatory obligation in s 85(3) to make a termination order once the statutory preconditions are satisfied.' 'Whether any inconsistency between Pt 5 and Pt 7 of the Residential Tenancies Act 2010 (NSW) is resolved by s 137.']

Ratio Decidendi

Section 154E of the Residential Tenancies Act 2010 (NSW) does not affect the mandatory operation of s 85(3). The matters listed in s 154E are directed to the exercise of discretionary termination powers and are extraneous to the preconditions in s 85(3). There was therefore no inconsistency between ss 85(3) and 154E requiring the application of s 137, and the Tribunal was correct to make the termination orders once the requirements of s 85(3) were satisfied.

Court Disposition

Leave to appeal granted; appeal allowed; Supreme Court Common Law Division orders set aside; NCAT order for possession directed to take effect on 22 December 2017.

Orders

  • ['Extend time to file the application for leave to appeal to 13 June 2017.' 'Grant the applicant leave to appeal.' 'Allow the appeal and set aside the orders made in the Common Law Division on 19 April 2017.' 'Direct that the order for possession made by NCAT on 25 November 2016 take effect on 22 December 2017.'...