Corcoran v Far [2017] NSWCATAP 16

Corcoran v Far [2017] NSWCATAP 16

The Tribunal erred in law by dismissing the application for want of jurisdiction under s 10(b) of the Residential Tenancies Act 2010 (NSW) without first making the findings necessary to enliven s 10, including whether the respondent was party to a written residential tenancy agreement for the premises, and by treating the absence of a fixed term as an essential impediment to a written residential tenancy agreement. A fixed term is not an essential requirement of a residential tenancy agreement under the Act. The Tribunal therefore had jurisdiction to determine the appellant's application, and the matter should be remitted for rehearing.

Jurisdiction
Australia
Judgment Date
25 January 2017
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal From a Consumer and Commercial Division Decision Dismissing the Application for Want of Jurisdiction
Outcome
Appeal allowed; order dismissing the application set aside; proceedings remitted for rehearing.
Legal Topics
['residential Tenancies Act 2010 (nsw)' 'shared Households' 'sub Tenancy' 'tribunal Jurisdiction' 'question of Law' 'procedural Fairness']
['residential Tenancies' 'administrative Law'] ['residential Tenancies Act 2010 (nsw)' 'shared Households' 'sub Tenancy' 'tribunal Jurisdiction' 'question of Law' 'procedural Fairness']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal From a Consumer and Commercial Division Decision Dismissing the Application for Want of Jurisdiction

Legal Issues

  1. 1 ['Whether the Tribunal erred in law in deciding that it had no jurisdiction to hear the application.' 'Whether s 10 of the Residential Tenancies Act 2010 (NSW) was enlivened without a finding that the premises were subject to a written residential tenancy agreement to which the respondent was a party.' 'Whether a written residential tenancy agreement for the purposes of s 10(b) of the Residential Tenancies Act 2010 (NSW) required a fixed term.' 'Whether the Tribunal erred in law by failing to afford the appellant procedural fairness.']

Ratio Decidendi

The Tribunal erred in law by dismissing the application for want of jurisdiction under s 10(b) of the Residential Tenancies Act 2010 (NSW) without first making the findings necessary to enliven s 10, including whether the respondent was party to a written residential tenancy agreement for the premises, and by treating the absence of a fixed term as an essential impediment to a written residential tenancy agreement. A fixed term is not an essential requirement of a residential tenancy agreement under the Act. The Tribunal therefore had jurisdiction to determine the appellant's application, and the matter should be remitted for rehearing.

Court Disposition

Appeal allowed; order dismissing the application set aside; proceedings remitted for rehearing.

Orders

  • ['The Appeal is allowed' 'The order below dismissing the application is set aside' 'The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for rehearing']