Forest v Suzanne [2022] NSWCATAP 292

Forest v Suzanne [2022] NSWCATAP 292

The Appeal Panel held that the appellant was not denied procedural fairness and that the Tribunal's reasons were not inadequate. The Tribunal had the relevant video material or transcript and narration, its findings reflected the evidence, and hearing the matter by telephone caused no demonstrated injustice. The 17 July recording was not prohibited because it was reasonably necessary to protect the appellant's lawful interests, and another unauthorised recording was admitted because its probative value outweighed the undesirability of admission; that recording supported the finding that both parties contributed to the conflict. The Tribunal was entitled to find breaches only by entry into...

Jurisdiction
Australia
Judgment Date
08 September 2022
Procedural Posture
Appeal in Residential Tenancy Proceedings Under the Residential Tenancies Act 2010 (nsw) / Appeal Panel Application for Leave to Appeal and Appeal From a Consumer and Commercial Division Decision Dated 15 February 2022
Outcome
Leave to appeal is refused and the appeal is dismissed.
Legal Topics
['quiet Enjoyment' 'shared Accommodation and Subtenancy' 'unauthorised Recording by Surveillance Device' 'admissibility Where Rules of Evidence Do Not Apply' 'procedural Fairness' 'adequacy of Reasons' 'assessment of Damages' 'leave to Appeal' 'costs and Special Circumstances']
['residential Tenancy Law' 'evidence' 'tribunal Procedure' 'costs'] ['quiet Enjoyment' 'shared Accommodation and Subtenancy' 'unauthorised Recording by Surveillance Device' 'admissibility Where Rules of Evidence Do Not Apply' 'procedural Fairness' 'adequacy of Reasons' 'assessment of Damages' 'leave to Appeal' 'costs and Special Circumstances']

Case Brief

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Procedural Posture

Appeal in Residential Tenancy Proceedings Under the Residential Tenancies Act 2010 (nsw) / Appeal Panel Application for Leave to Appeal and Appeal From a Consumer and Commercial Division Decision Dated 15 February 2022

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness by hearing the matter by telephone and not viewing video evidence during the hearing.' "Whether the Tribunal's reasons were inadequate in dealing with the evidence and findings about conflict between the parties." "Whether video and audio recordings were inadmissible because they were made without the respondent's consent." "Whether the Tribunal erred in finding only limited breaches of the tenant's right to quiet enjoyment under s 50 of the Residential Tenancies Act 2010 (NSW)." 'Whether leave to appeal should be granted in relation to findings of fact and the assessment of damages.' 'Whether any costs order should be made.']

Ratio Decidendi

The Appeal Panel held that the appellant was not denied procedural fairness and that the Tribunal's reasons were not inadequate. The Tribunal had the relevant video material or transcript and narration, its findings reflected the evidence, and hearing the matter by telephone caused no demonstrated injustice. The 17 July recording was not prohibited because it was reasonably necessary to protect the appellant's lawful interests, and another unauthorised recording was admitted because its probative value outweighed the undesirability of admission; that recording supported the finding that both parties contributed to the conflict. The Tribunal was entitled to find breaches only by entry into...

Court Disposition

Leave to appeal is refused and the appeal is dismissed.

Orders

  • ['Leave to appeal is refused and the appeal is dismissed.']