Orford v Hardiman [2021] NSWCATCD 136

Orford v Hardiman [2021] NSWCATCD 136

The Tribunal found the landlords' application, though containing a formal defect, was substantially for a termination order under the correct statutory ground and did not warrant summary dismissal or refusal. It concluded the application was not retaliatory within the meaning of section 115 and, in any event, exercise of the Tribunal’s discretion would not support refusal given the ongoing breakdown of the tenancy and the extensive notice provided. Consequently, a termination order was required. The order for possession was suspended to 5 December 2021 to allow the tenant more time to vacate.

Parties
First Applicant (landlord): Michelle Orford; Second Applicant (landlord): Darryl Bozicevic; Respondent (tenant): Vanessa Hardiman
Jurisdiction
Australia
Judgment Date
18 October 2021
Procedural Posture
Residential Tenancy Dispute / Hearing and Final Decision
Outcome
Application granted. The residential tenancy agreement is terminated and possession given to landlords, with suspension of possession order until 5 December 2021.
Legal Topics
Termination of Residential Tenancy, End of Fixed Term, Retaliatory Application, Tribunal Procedure, Suspension of Possession Order
Tenancy Law Administrative Law Termination of Residential Tenancy End of Fixed Term Retaliatory Application Tribunal Procedure Suspension of Possession Order

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Parties

Michelle Orford

First Applicant (landlord)

Darryl Bozicevic

Second Applicant (landlord)

Vanessa Hardiman

Respondent (tenant)

Procedural Posture

Residential Tenancy Dispute / Hearing and Final Decision

Legal Issues

  1. 1 Whether the Tribunal should make a termination order for end of fixed term under s84(3) of the Residential Tenancies Act 2010
  2. 2 Whether the termination application is retaliatory under s115 of the Residential Tenancies Act 2010
  3. 3 Whether a formal defect in the application warrants summary dismissal

Ratio Decidendi

The Tribunal found the landlords' application, though containing a formal defect, was substantially for a termination order under the correct statutory ground and did not warrant summary dismissal or refusal. It concluded the application was not retaliatory within the meaning of section 115 and, in any event, exercise of the Tribunal’s discretion would not support refusal given the ongoing breakdown of the tenancy and the extensive notice provided. Consequently, a termination order was required. The order for possession was suspended to 5 December 2021 to allow the tenant more time to vacate.

Court Disposition

Application granted. The residential tenancy agreement is terminated and possession given to landlords, with suspension of possession order until 5 December 2021.

Orders

  • The application is amended to state that the landlords apply for a termination order under section 84(3) of the Residential Tenancies Act 2010 on the ground of the end-of-fixed term.
  • The Tribunal declines to refuse to make a termination order pursuant to section 115(b) of the Residential Tenancies Act 2010.