Ehrenfeld v Choy & Anor [2006] NSWSC 1092

Ehrenfeld v Choy & Anor [2006] NSWSC 1092

The plaintiff was entitled to relief because the 5 October 2005 Tribunal orders were made in his absence in circumstances amounting to a denial of procedural fairness. It was plain that the plaintiff resisted the landlord's application and wished to be heard, but the landlord and agent selectively placed material before the Tribunal and failed to disclose relevant facts including the ongoing disputes, the plaintiff's known absence, and the landlord's alleged non-compliance with earlier arrangements. The Tribunal should have been aware from its file that the plaintiff wished to be heard, and proceeding to make termination and possession orders in those circumstances denied procedural...

Jurisdiction
Australia
Judgment Date
19 October 2006
Procedural Posture
Summons Seeking Relief in the Nature of Certiorari and Related Relief Concerning Consumer Trader and Tenancy Tribunal Tenancy Orders / Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division, Administrative Law List
Outcome
Tribunal orders quashed; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['consumer Trader and Tenancy Tribunal' 'procedural Fairness' 'certiorari' 'termination of Residential Tenancy' 'ex Parte Hearing' 'jurisdictional Error' 'relief Against Forfeiture']
['administrative Law' 'residential Tenancy Law'] ['consumer Trader and Tenancy Tribunal' 'procedural Fairness' 'certiorari' 'termination of Residential Tenancy' 'ex Parte Hearing' 'jurisdictional Error' 'relief Against Forfeiture']

Case Brief

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Procedural Posture

Summons Seeking Relief in the Nature of Certiorari and Related Relief Concerning Consumer Trader and Tenancy Tribunal Tenancy Orders / Judgment After Hearing in the Supreme Court of New South Wales, Common Law Division, Administrative Law List

Legal Issues

  1. 1 ['Whether the Consumer Trader and Tenancy Tribunal lacked jurisdiction because the termination notice was not given in accordance with Pt 5 of the Residential Tenancies Act 1987.' 'Whether the Tribunal exceeded its monetary jurisdiction under s 85 of the Residential Tenancies Act 1987 by dealing with rent arrears exceeding $10,000.' 'Whether the plaintiff was denied procedural fairness when termination and possession orders were made on 5 October 2005 in his absence.' 'Whether s 68(8)(c) of the CTTT Act prevented review of the refusal to grant a rehearing and whether applying for a rehearing precluded review of the original Tribunal orders.' 'Whether any extension of time or leave was required for the Supreme Court proceedings.']

Ratio Decidendi

The plaintiff was entitled to relief because the 5 October 2005 Tribunal orders were made in his absence in circumstances amounting to a denial of procedural fairness. It was plain that the plaintiff resisted the landlord's application and wished to be heard, but the landlord and agent selectively placed material before the Tribunal and failed to disclose relevant facts including the ongoing disputes, the plaintiff's known absence, and the landlord's alleged non-compliance with earlier arrangements. The Tribunal should have been aware from its file that the plaintiff wished to be heard, and proceeding to make termination and possession orders in those circumstances denied procedural...

Court Disposition

Tribunal orders quashed; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['An order in the nature of certiorari bringing up the orders of the second defendant (CTTT) made on 5 October 2005 together with any writ or process in execution of those orders, and such orders, writs or process are quashed.' "The first defendant is ordered to pay the plaintiff's costs of the summons."]