McDonald v Pochin [2016] NSWCATAP 259

McDonald v Pochin [2016] NSWCATAP 259

There was no error of law because, on the Tribunal's findings, the written termination notice was not served, the agent orally told the tenant that vacant possession was required by 1 June 2016, and the tenancy ended when the tenant gave up possession with the landlord's consent under s 81(4)(e) of the Residential Tenancies Act 2010. Consent under that provision was not required to be in writing, and ss 110 and 107 did not apply because the tenancy did not end by a valid s 84 notice or abandonment. Leave to appeal on fresh evidence was refused because Mr Millane's evidence was reasonably available at the original hearing on an objective test and the appellants' decision not to call it did...

Jurisdiction
Australia
Judgment Date
30 November 2016
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['termination of Residential Tenancy' 'termination by Consent' 'abandonment' 'break Lease Fee' 'fresh Evidence' 'leave to Appeal']
['residential Tenancy' 'civil Procedure'] ['termination of Residential Tenancy' 'termination by Consent' 'abandonment' 'break Lease Fee' 'fresh Evidence' 'leave to Appeal']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders

Legal Issues

  1. 1 ["Whether the Tribunal erred in law by finding that the tenancy ended after the tenant gave vacant possession with the landlord's consent following an oral telephone communication." 'Whether the appellants should be granted leave to appeal on the basis of fresh evidence from the managing agent said not to have been reasonably available at the original hearing.' "Whether there was any procedural unfairness arising from the original Group List hearing and the managing agent's absence."]

Ratio Decidendi

There was no error of law because, on the Tribunal's findings, the written termination notice was not served, the agent orally told the tenant that vacant possession was required by 1 June 2016, and the tenancy ended when the tenant gave up possession with the landlord's consent under s 81(4)(e) of the Residential Tenancies Act 2010. Consent under that provision was not required to be in writing, and ss 110 and 107 did not apply because the tenancy did not end by a valid s 84 notice or abandonment. Leave to appeal on fresh evidence was refused because Mr Millane's evidence was reasonably available at the original hearing on an objective test and the appellants' decision not to call it did...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to Appeal is refused' 'The Appeal is dismissed']