Kesselring v Van Bodegraven [2019] NSWCATAP 27

Kesselring v Van Bodegraven [2019] NSWCATAP 27

The Tribunal erred by failing to consider the tenants’ entitlement to terminate the agreement under s 100(1)(c), and by relying on an agreement inconsistent with the Act. The vacate notice was found sufficient, deficiencies in its form or service being waived under s 113 as the landlord suffered no disadvantage. The agreement ended on 23 April 2018 and the tenants were not liable for rent after that date.

Jurisdiction
Australia
Judgment Date
23 January 2019
Procedural Posture
Appeal / Decision on Appeal From Consumer and Commercial Division, RT 18/20625
Outcome
Appeal upheld
Legal Topics
['termination of Fixed Term Residential Tenancy' 'notice Requirements' 'statutory Compliance' 'effect of Mutual Agreement' 'jurisdictional Error' 'internal Appeal']
['residential Tenancies' 'administrative Law'] ['termination of Fixed Term Residential Tenancy' 'notice Requirements' 'statutory Compliance' 'effect of Mutual Agreement' 'jurisdictional Error' 'internal Appeal']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal From Consumer and Commercial Division, RT 18/20625

Legal Issues

  1. 1 ['Whether the Tribunal erred by taking into account an agreement inconsistent with statute (Residential Tenancies Act 2010)' 'Whether the Tribunal failed to apply s 100 of the Residential Tenancies Act 2010' 'Whether the mutual agreement could override statutory notice rights' 'Whether the vacate notice given was a valid termination notice under s 100(1)(c), s 82, and s 223 of the Act']

Ratio Decidendi

The Tribunal erred by failing to consider the tenants’ entitlement to terminate the agreement under s 100(1)(c), and by relying on an agreement inconsistent with the Act. The vacate notice was found sufficient, deficiencies in its form or service being waived under s 113 as the landlord suffered no disadvantage. The agreement ended on 23 April 2018 and the tenants were not liable for rent after that date.

Court Disposition

Appeal upheld

Orders

  • ['Annette Mary Kesselring is joined as a party to the appeal.' 'Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.' 'The appeal is upheld.' 'The orders made in proceedings RT 18/20625 on 20 July 2018, as amended under s 63 of the Civil and Administrative Tribunal Act...