Rayner v Rayner [2019] NSWCATAP 121

Rayner v Rayner [2019] NSWCATAP 121

The Appeal Panel found no error in the Tribunal's making of possession orders on the appellant's asserted equitable-interest ground because the material did not show that the appellant had articulated an equitable claim or sought a stay before the Tribunal, and in any event he had not established an equitable...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 May 2019
Procedural Posture
Residential Tenancy Internal Appeal / Appeal Panel Decision on Appeal From Consumer and Commercial Division Termination and Possession Orders
Outcome
Orders varied; appeal otherwise dismissed; stay lifted; directions made for any costs application.
Legal Topics
['termination of Periodic Residential Tenancy Agreement' 'order for Possession' 'retaliatory Termination Notice' 'suspension of Possession Order' 'asserted Equitable Interest as a Defence to Possession' 'procedural Irregularity in Determining Related Tenancy Applications']
['leases and Tenancies' 'residential Tenancy' 'civil and Administrative Procedure' 'equity'] ['termination of Periodic Residential Tenancy Agreement' 'order for Possession' 'retaliatory Termination Notice' 'suspension of Possession Order' 'asserted Equitable Interest as a Defence to Possession' 'procedural Irregularity in Determining Related Tenancy Applications']

Source-derived case record

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Procedural Posture

Residential Tenancy Internal Appeal / Appeal Panel Decision on Appeal From Consumer and Commercial Division Termination and Possession Orders

Legal Issues

  1. 1 ["Whether the Tribunal erred in making orders for possession because it did not have jurisdiction to determine the appellant's asserted equitable claim to a right of possession independently of the residential tenancy agreement." 'Whether ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) required postponement of possession relief pending determination of the asserted equitable claim.' "Whether there was a procedural irregularity because the Tribunal made orders sought in the respondent's application when the appellant's application was the listed application."]

Ratio Decidendi

The Appeal Panel found no error in the Tribunal's making of possession orders on the appellant's asserted equitable-interest ground because the material did not show that the appellant had articulated an equitable claim or sought a stay before the Tribunal, and in any event he had not established an equitable defence enlivening ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW). Once the residential tenancy agreement was terminated, s 83 of the Residential Tenancies Act 2010 (NSW) required an order for possession, subject only to the Tribunal's power to suspend possession under s 114. Although the orders should have been framed as orders in the respondent's application and the...

Court Disposition

Orders varied; appeal otherwise dismissed; stay lifted; directions made for any costs application.

Orders

  • ["The orders of the Tribunal made on 30 July 2018 are varied so that the applicant's application in RT 18/21167 is dismissed." "In the respondent's application RT 18/32964, the residential tenancy agreement is terminated immediately and possession is given to the landlord on the date of termination." 'The order for...