Van Someren Boyd v Van Someren Boyd (No 2) [2021] NSWCATAP 126

Van Someren Boyd v Van Someren Boyd (No 2) [2021] NSWCATAP 126

The Tribunal erred by making possession orders without permitting Claire to establish a claimed equitable interest in the property, which could allow her to resist an order for possession. Proceedings are remitted for determination of whether Claire can establish such an interest, and if so, whether possession should be suspended pending relief from a court of competent jurisdiction.

Jurisdiction
Australia
Judgment Date
07 May 2021
Procedural Posture
Internal Appeal / Appeal Panel Judgment
Outcome
Appeal partially allowed; proceedings remitted in relation to Upstairs Premises. Appeal otherwise dismissed. Second appeal reinstated by consent, then dismissed.
Legal Topics
['residential Tenancy Termination' 'equitable Interest' 'possession Order' 'procedural Fairness']
['tenancy' 'equity'] ['residential Tenancy Termination' 'equitable Interest' 'possession Order' 'procedural Fairness']

Case Brief

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Procedural Posture

Internal Appeal / Appeal Panel Judgment

Legal Issues

  1. 1 ['Whether Tribunal erred in ordering possession without considering claimed equitable interest' "Whether non-payment of rent invalidated appellant's equitable entitlement" 'Procedural fairness in conduct of Tribunal hearing' 'Entitlement to remain in possession after termination of tenancy agreement' 'Whether premises were uninhabitable warranting relief from money order']

Ratio Decidendi

The Tribunal erred by making possession orders without permitting Claire to establish a claimed equitable interest in the property, which could allow her to resist an order for possession. Proceedings are remitted for determination of whether Claire can establish such an interest, and if so, whether possession should be suspended pending relief from a court of competent jurisdiction.

Court Disposition

Appeal partially allowed; proceedings remitted in relation to Upstairs Premises. Appeal otherwise dismissed. Second appeal reinstated by consent, then dismissed.

Orders

  • ["Set aside Tribunal's order number 2 made on 15 December 2020 and order that the residential tenancy agreement is terminated on 15 December 2020." "Set aside Tribunal's order numbers 3 and 5 made on 15 December 2020." 'Order that proceedings RT 20/46127 be remitted to the Tribunal to determine whether Claire Van...