Nikiforova-Grigorieva v Li [2022] NSWCATAP 191

Nikiforova-Grigorieva v Li [2022] NSWCATAP 191

The Appeal Panel allowed the appeal because the Tribunal made legal errors in terminating the tenancy: the non-payment termination notice relied on was not in existence when the landlord lodged the Tribunal application, the termination date had not passed when the hearing occurred, and s 88(4) prohibited consideration before that date. The tenants were also denied procedural fairness because the interpreter was not used for important parts of the hearing and, combined with late service of the landlord's documents and lack of opportunity to present evidence, they were denied a reasonable opportunity to make material submissions about the rental ledger and arrears.

Jurisdiction
Australia
Judgment Date
09 June 2022
Procedural Posture
Internal Appeal From Residential Tenancy Orders for Termination, Vacant Possession and Rental Arrears / Appeal Panel Decision
Outcome
Time extended; appeal allowed; first instance orders set aside; termination and vacant possession application dismissed; rental arrears claim remitted for determination by a differently constituted Tribunal.
Legal Topics
['termination of Residential Tenancy Agreement' 'non Payment Termination Notice' 'jurisdictional Error' 'procedural Fairness' 'use of Interpreter' 'extension of Time for Appeal' 'rental Arrears']
['residential Tenancies' 'administrative Law' 'civil Procedure'] ['termination of Residential Tenancy Agreement' 'non Payment Termination Notice' 'jurisdictional Error' 'procedural Fairness' 'use of Interpreter' 'extension of Time for Appeal' 'rental Arrears']

Case Brief

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Procedural Posture

Internal Appeal From Residential Tenancy Orders for Termination, Vacant Possession and Rental Arrears / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether time for filing the appeal should be extended.' 'Whether the Tribunal fell into jurisdictional error by making termination and possession orders when the termination notice did not exist when the application was lodged and the termination date had not passed at the hearing.' 'Whether the Tribunal was precluded by s 88(4) of the Residential Tenancies Act 2010 (NSW) from considering the termination application before the termination date.' 'Whether the tenants were denied procedural fairness in relation to the late service of documents, opportunity to present evidence and submissions, and use of an interpreter.' 'Whether the rental arrears order should be set aside and remitted.']

Ratio Decidendi

The Appeal Panel allowed the appeal because the Tribunal made legal errors in terminating the tenancy: the non-payment termination notice relied on was not in existence when the landlord lodged the Tribunal application, the termination date had not passed when the hearing occurred, and s 88(4) prohibited consideration before that date. The tenants were also denied procedural fairness because the interpreter was not used for important parts of the hearing and, combined with late service of the landlord's documents and lack of opportunity to present evidence, they were denied a reasonable opportunity to make material submissions about the rental ledger and arrears.

Court Disposition

Time extended; appeal allowed; first instance orders set aside; termination and vacant possession application dismissed; rental arrears claim remitted for determination by a differently constituted Tribunal.

Orders

  • ['Time for filing the appeal is extended to 29 March 2022.' 'The appeal is allowed.' 'The orders of the Tribunal in RT22/06845 made on 10 March 2022 are set aside.' "The respondent's application for termination of the residential tenancy agreement and vacant possession of the premises is dismissed." "The matter is...