Steinbeck, Sonia and Steinbeck, Graeme v McDonald [2015] NSWCATAP 90

Steinbeck, Sonia and Steinbeck, Graeme v McDonald [2015] NSWCATAP 90

Although the short delay in filing the Notice of Appeal was satisfactorily explained and caused no prejudice, the appeal failed. The Tribunal did not err in treating s 115 of the Residential Tenancies Act 2010 (NSW) as a discretionary power that could be exercised despite s 85, and the word "may" in s 115(1) was not displaced by any contrary intention. The appellants did not establish actual bias or denial of procedural fairness, and the Tribunal had regard to relevant evidence. Its refusal to declare the termination notice ineffective and its refusal of compensation were not shown to be unfair, inequitable or against the weight of evidence. The new report did not support a finding that...

Jurisdiction
Australia
Judgment Date
20 May 2015
Procedural Posture
Internal Appeal From Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Application for Extension of Time, Leave to Appeal and Appeal
Outcome
Time to file the Notice of Appeal extended; leave to appeal refused; appeal dismissed; order for possession suspension varied.
Legal Topics
['extension of Time to Lodge Notice of Appeal' 'leave to Appeal From Consumer and Commercial Division' 'termination of Periodic Residential Tenancy Agreement' 'retaliatory Eviction' 'actual Bias' 'weight of Evidence' 'non Economic Loss Compensation Threshold' 'significant New Evidence']
['administrative Law' 'residential Tenancy Law' 'procedural Fairness' 'statutory Interpretation'] ['extension of Time to Lodge Notice of Appeal' 'leave to Appeal From Consumer and Commercial Division' 'termination of Periodic Residential Tenancy Agreement' 'retaliatory Eviction' 'actual Bias' 'weight of Evidence' 'non Economic Loss Compensation Threshold' 'significant New Evidence']

Case Brief

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Application for Extension of Time, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether time to file the Notice of Appeal should be extended' 'Whether the Tribunal misapplied ss 85 and 115 of the Residential Tenancies Act 2010 (NSW)' 'Whether the Tribunal misconstrued s 115 of the Residential Tenancies Act 2010 (NSW) by treating the word "may" as discretionary' 'Whether the Tribunal denied procedural fairness by actual bias' "Whether the Tribunal denied procedural fairness by failing to have regard to the appellants' evidence" 'Whether the refusal to declare the termination notice to have no effect was not fair and equitable or was against the weight of evidence' 'Whether the refusal to award compensation was not fair and equitable or was against the weight of evidence' 'Whether significant new evidence had arisen']

Ratio Decidendi

Although the short delay in filing the Notice of Appeal was satisfactorily explained and caused no prejudice, the appeal failed. The Tribunal did not err in treating s 115 of the Residential Tenancies Act 2010 (NSW) as a discretionary power that could be exercised despite s 85, and the word "may" in s 115(1) was not displaced by any contrary intention. The appellants did not establish actual bias or denial of procedural fairness, and the Tribunal had regard to relevant evidence. Its refusal to declare the termination notice ineffective and its refusal of compensation were not shown to be unfair, inequitable or against the weight of evidence. The new report did not support a finding that...

Court Disposition

Time to file the Notice of Appeal extended; leave to appeal refused; appeal dismissed; order for possession suspension varied.

Orders

  • ['Time to file the Notice of Appeal is extended to 9 January 2015.' 'Leave to appeal is refused.' 'The appeal is dismissed.' 'Order 5 of the decision under appeal is varied and in substitution, the order for possession is suspended until 28 days from the date of this decision. The balance of the decision under...