Basha v Rathsam [2016] NSWCATAP 204

Basha v Rathsam [2016] NSWCATAP 204

The appeal was dismissed because none of the appellant's grounds established an error of law, denial of procedural fairness, or a miscarriage of discretion. Allegations about outstanding rent were irrelevant to termination under s 85; the Tribunal considered the late and emailed documents and found no prejudice; the disputed statements in the landlords' application were rejected but were not fatal to the extension application; the representation point was not raised below and caused no relevant unfairness; the short extension of time under s 41 was properly considered; and, once the valid s 85 notice and non-vacation were established, the Tribunal was required to make the termination order.

Jurisdiction
Australia
Judgment Date
09 September 2016
Procedural Posture
Residential Tenancy Internal Appeal / Appeal Panel Appeal From Consumer and Commercial Division Termination and Possession Orders
Outcome
The appeal is dismissed.
Legal Topics
['termination of Periodic Tenancy' 'extension of Time' 'procedural Fairness' 'representation Before Tribunal' 'exercise of Discretion' 'possession Orders']
['residential Tenancy Law' 'administrative Law'] ['termination of Periodic Tenancy' 'extension of Time' 'procedural Fairness' 'representation Before Tribunal' 'exercise of Discretion' 'possession Orders']

Case Brief

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Procedural Posture

Residential Tenancy Internal Appeal / Appeal Panel Appeal From Consumer and Commercial Division Termination and Possession Orders

Legal Issues

  1. 1 ['Whether alleged misleading statements about outstanding rent were relevant to the making of a termination order under s 85 of the Residential Tenancies Act 2010.' "Whether the landlords' filing of documents and request for an extension of time by email, and out of time, denied the appellant procedural fairness." "Whether statements in the landlords' application and the non-appearance of the agent who completed it affected the validity of the extension of time decision." "Whether the respondents' agent Mr Ha was able to appear where leave under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) was not raised below." "Whether the Tribunal's discretion to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) miscarried." 'Whether the tenancy should have been terminated under s 85 of the Residential Tenancies Act 2010.']

Ratio Decidendi

The appeal was dismissed because none of the appellant's grounds established an error of law, denial of procedural fairness, or a miscarriage of discretion. Allegations about outstanding rent were irrelevant to termination under s 85; the Tribunal considered the late and emailed documents and found no prejudice; the disputed statements in the landlords' application were rejected but were not fatal to the extension application; the representation point was not raised below and caused no relevant unfairness; the short extension of time under s 41 was properly considered; and, once the valid s 85 notice and non-vacation were established, the Tribunal was required to make the termination order.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.' 'The stay made on 14 June 2016 is lifted.' "Order 4 made 6 May 2016 in application RT 16/07816 is varied to read as follows: 4. The order for possession is suspended until 21 days after the publication of the Appeal Panel's reasons for decision and orders in appeal AP 16/25698."]