Towers v Awabakal Local Aboriginal Land Council [2021] NSWCATAP 380

Towers v Awabakal Local Aboriginal Land Council [2021] NSWCATAP 380

The appeal was upheld because the residential tenancy agreement considered by the Tribunal was the 29 April 2015 agreement, which had already been terminated by the Tribunal's order of 14 February 2019. In the absence of that earlier termination order being set aside, the Tribunal had no jurisdiction on 13 July 2021...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Appeal From NCAT Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel; Extension of Time and Appeal
Outcome
Time to appeal extended; appeal upheld; Tribunal orders set aside; respondent's application dismissed; stay application dismissed.
Legal Topics
['jurisdictional Error' 'termination of Residential Tenancy Agreement' 'rent Arrears' 'point Not Taken Below' 'extension of Time' 'stay Application']
['administrative Law' 'residential Tenancy Law' 'appeals'] ['jurisdictional Error' 'termination of Residential Tenancy Agreement' 'rent Arrears' 'point Not Taken Below' 'extension of Time' 'stay Application']

Source-derived case record

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Procedural Posture

Appeal From NCAT Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel; Extension of Time and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal made a jurisdictional error by purporting to terminate a residential tenancy agreement that had already been terminated by an earlier Tribunal order.' "Whether the Tribunal's order for payment of arrears of rent should be set aside where the parties and Tribunal wrongly treated it as an update of an earlier arrears order." 'Whether the appellant should be allowed to raise for the first time on appeal the contention that a new residential tenancy agreement had come into existence and that no arrears were owing under it.' 'Whether time to appeal should be extended.']

Ratio Decidendi

The appeal was upheld because the residential tenancy agreement considered by the Tribunal was the 29 April 2015 agreement, which had already been terminated by the Tribunal's order of 14 February 2019. In the absence of that earlier termination order being set aside, the Tribunal had no jurisdiction on 13 July 2021 to terminate the same agreement again. The arrears order was also set aside because, after termination, further rent was not recoverable under the terminated tenancy absent an agreement to that effect, and the parties and Tribunal wrongly treated the 2021 order as merely updating the earlier arrears order. The appellant was not permitted to raise the alleged new tenancy for...

Court Disposition

Time to appeal extended; appeal upheld; Tribunal orders set aside; respondent's application dismissed; stay application dismissed.

Orders

  • ['Time to appeal is extended up to and including 21 September 2021.' 'Appeal upheld.' 'The orders made by the Tribunal on 13 July 2021 are set aside.' "In lieu thereof, order that the respondent's application be dismissed." "The appellant's application for a stay of the Tribunal's orders made on 13 July 2021 is...