Kalache v Kalache [2017] NSWCATAP 123

Kalache v Kalache [2017] NSWCATAP 123

The appeal was allowed because the Tribunal's finding that there was a residential tenancy agreement between Dena Kalache, Ali Kalache and Ackram Kalache was crucial to the termination and possession decision, but the Tribunal did not set out the reasoning process that led to that conclusion or refer to evidence supporting an agreement between Ackram Kalache and Dena Kalache. Although a termination notice naming Ali and Dena as tenants meant the no evidence ground was not established, the reasons were inadequate. Ali Kalache was also a person against whom possession was sought and should have been named as a respondent.

Jurisdiction
Australia
Judgment Date
26 May 2017
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel From Decision of NSW Civil and Administrative Tribunal, Consumer and Commercial Division Dated 08 December 2016
Outcome
Time to appeal extended; appeal allowed; Tribunal decision set aside; matter remitted for reconsideration by a differently constituted Tribunal; Ali Kalache joined as a respondent to the Tribunal proceedings.
Legal Topics
['residential Tenancy Agreement' 'termination Notice' 'possession Order' 'extension of Time to Appeal' 'questions of Law' 'no Evidence Ground' 'adequacy of Reasons' 'joinder of Party']
['residential Tenancies' 'civil Procedure' 'administrative Law'] ['residential Tenancy Agreement' 'termination Notice' 'possession Order' 'extension of Time to Appeal' 'questions of Law' 'no Evidence Ground' 'adequacy of Reasons' 'joinder of Party']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel From Decision of NSW Civil and Administrative Tribunal, Consumer and Commercial Division Dated 08 December 2016

Legal Issues

  1. 1 ['Whether the appeal should be accepted even though it was lodged late.' 'Whether the Tribunal made an error of law by finding that there was a residential tenancy agreement between Ackram Kalache and Dena Kalache without evidence to support that finding.' 'Whether the Tribunal gave inadequate reasons for finding that there was a residential tenancy agreement between Ackram Kalache, Dena Kalache and Ali Kalache.' 'Whether Ali Kalache should be joined as a respondent to the Tribunal proceedings.']

Ratio Decidendi

The appeal was allowed because the Tribunal's finding that there was a residential tenancy agreement between Dena Kalache, Ali Kalache and Ackram Kalache was crucial to the termination and possession decision, but the Tribunal did not set out the reasoning process that led to that conclusion or refer to evidence supporting an agreement between Ackram Kalache and Dena Kalache. Although a termination notice naming Ali and Dena as tenants meant the no evidence ground was not established, the reasons were inadequate. Ali Kalache was also a person against whom possession was sought and should have been named as a respondent.

Court Disposition

Time to appeal extended; appeal allowed; Tribunal decision set aside; matter remitted for reconsideration by a differently constituted Tribunal; Ali Kalache joined as a respondent to the Tribunal proceedings.

Orders

  • ['The time for lodging the Notice of Appeal is extended to 5 January 2017.' 'The appeal is allowed.' "The Tribunal's decision is set aside." 'The Tribunal, differently constituted, is to reconsider the whole case.' 'Ali Kalache is joined as a respondent to the Tribunal proceedings RT 16/40296.']