Kwok v NSW Land and Housing Corporation [2019] NSWCATAP 236

Kwok v NSW Land and Housing Corporation [2019] NSWCATAP 236

The appeal was dismissed because the Trustee had been validly appointed as Mr Davison's financial manager and had authority under the NSW Trustee and Guardianship Act 2009 (NSW) to execute the Relinquishment on his behalf; the Relinquishment was relevant and admissible; the tenancy was terminated by bilateral agreement so no termination notice under s 105 of the Residential Tenancy Act 2010 (NSW) was required; there was no evidence of revocation by Mr Davison; and the requirements for an order for possession against Ms Kwok as a remaining occupant were satisfied. The earlier orders were set aside to remove the otiose termination order and replaced with an order for possession taking...

Jurisdiction
Australia
Judgment Date
30 September 2019
Procedural Posture
Appeal Concerning Order for Possession of Residential Premises / Appeal Panel Appeal From Orders of the Consumer and Commercial Division Made on 9 July 2019
Outcome
Appeal dismissed; orders made on 9 July 2019 set aside; order for possession made to take effect 35 days after the date of the reasons.
Legal Topics
['appointment of Financial Manager' 'powers of NSW Trustee and Guardian' 'termination of Residential Tenancy by Agreement' 'relinquishment of Tenancy' 'occupant Remaining in Premises' 'order for Possession' 'appeal From Tribunal Orders']
['landlord and Tenant' 'residential Tenancies' 'guardianship and Financial Management' 'administrative Law'] ['appointment of Financial Manager' 'powers of NSW Trustee and Guardian' 'termination of Residential Tenancy by Agreement' 'relinquishment of Tenancy' 'occupant Remaining in Premises' 'order for Possession' 'appeal From Tribunal Orders']

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Procedural Posture

Appeal Concerning Order for Possession of Residential Premises / Appeal Panel Appeal From Orders of the Consumer and Commercial Division Made on 9 July 2019

Legal Issues

  1. 1 ['Whether the NSW Trustee and Guardian had authority to execute the Relinquishment of Tenancy Consent on behalf of Mr Davison.' 'Whether the Relinquishment of Tenancy Consent was wrongly admitted into evidence.' 'Whether a termination notice under s 105 of the Residential Tenancy Act 2010 (NSW) was required before the tenancy could be treated as terminated.' 'Whether Mr Davison had revoked the termination of the tenancy.' 'Whether the requirements for an order for possession against a remaining occupant under s 95(3) of the Residential Tenancy Act 2010 (NSW) were satisfied.']

Ratio Decidendi

The appeal was dismissed because the Trustee had been validly appointed as Mr Davison's financial manager and had authority under the NSW Trustee and Guardianship Act 2009 (NSW) to execute the Relinquishment on his behalf; the Relinquishment was relevant and admissible; the tenancy was terminated by bilateral agreement so no termination notice under s 105 of the Residential Tenancy Act 2010 (NSW) was required; there was no evidence of revocation by Mr Davison; and the requirements for an order for possession against Ms Kwok as a remaining occupant were satisfied. The earlier orders were set aside to remove the otiose termination order and replaced with an order for possession taking...

Court Disposition

Appeal dismissed; orders made on 9 July 2019 set aside; order for possession made to take effect 35 days after the date of the reasons.

Orders

  • ['Appeal dismissed.' 'Set aside the orders of the Tribunal made on 9 July 2019.' 'In lieu thereof, we make an order for possession, such order to take effect from 35 days after the date of these reasons.']