Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424

Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424

Section 154E requires the Tribunal to have regard to specified matters when considering whether to make a termination order for a social housing tenancy agreement. This obligation applies even when s 85 appears to impose a mandatory duty on the Tribunal to make a termination order, because s 137 resolves any inconsistency in favour of Part 7. Consequently, the Tribunal erred in failing to consider the matters in s 154E when making the orders against the plaintiffs, and its decisions must be set aside.

Jurisdiction
Australia
Judgment Date
19 April 2017
Procedural Posture
Appeal / Principal Judgment on Appeal From Tribunal
Outcome
Appeal allowed; Tribunal's decisions set aside; matters remitted; costs awarded
Legal Topics
['termination of Tenancy' 'social Housing' 'obligation of Tribunal' 'interpretation of Residential Tenancies Act 2010 (nsw)' 'error of Law' 'mandatory Relevant Considerations']
['statutory Interpretation' 'administrative Law' 'tenancy Law'] ['termination of Tenancy' 'social Housing' 'obligation of Tribunal' 'interpretation of Residential Tenancies Act 2010 (nsw)' 'error of Law' 'mandatory Relevant Considerations']

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Procedural Posture

Appeal / Principal Judgment on Appeal From Tribunal

Legal Issues

  1. 1 ['Whether s 154E of the Residential Tenancies Act 2010 (NSW) qualifies the duty imposed by s 85 in respect of social housing tenancy agreements' 'Whether the Tribunal is required to consider matters listed in s 154E when making a termination order under s 85 for social housing tenancies' 'Whether there is an inconsistency between s 85 and s 154E, and if so, how it is resolved' "Whether the Tribunal's failure to consider mandatory relevant considerations is an error of law"]

Ratio Decidendi

Section 154E requires the Tribunal to have regard to specified matters when considering whether to make a termination order for a social housing tenancy agreement. This obligation applies even when s 85 appears to impose a mandatory duty on the Tribunal to make a termination order, because s 137 resolves any inconsistency in favour of Part 7. Consequently, the Tribunal erred in failing to consider the matters in s 154E when making the orders against the plaintiffs, and its decisions must be set aside.

Court Disposition

Appeal allowed; Tribunal's decisions set aside; matters remitted; costs awarded

Orders

  • ['Grant leave to the plaintiffs to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Allow the appeal.' 'Set aside the decisions of the Civil and Administrative Tribunal terminating the residential tenancy agreements between the respective plaintiffs and the defendant.' 'Remit the...