Housing NSW v Hamilton [2015] NSWCATAP 136

Housing NSW v Hamilton [2015] NSWCATAP 136

The Tribunal lacked power to make the relocation order and associated orders. The relocation order was not an order requiring performance of the residential tenancy agreement under s 187(1)(b), nor an order directing compliance with s 50(3) under s 187(1)(h), because the relevant obligation to take reasonable steps related to Ms Hamilton's use of the existing residential premises the subject of the agreement, not relocation to other premises. Although s 187(1)(d) permits non-monetary compensation, the relocation order went beyond and could not be characterised as compensation for the loss caused by interference with quiet enjoyment. Because there was no primary power to make the...

Jurisdiction
Australia
Judgment Date
09 July 2015
Procedural Posture
Appeal Concerning NCAT Power to Make Orders Under the Residential Tenancies Act 2010 (nsw) / Appeal From Decision of the Consumer and Commercial Division of NCAT Dated 27 February 2015
Outcome
Appeal allowed; decision under appeal set aside; matter remitted to the Consumer and Commercial Division of NCAT constituted by a different member.
Legal Topics
['scope of NCAT Order Making Powers' 'quiet Enjoyment' 'compensation Under S 187(1)(d) of the Residential Tenancies Act 2010 (nsw)' 'ancillary Orders Under S 188(c) of the Residential Tenancies Act 2010 (nsw)' 'remittal to Differently Constituted Tribunal']
['residential Tenancy Law' 'civil and Administrative Law' 'practice and Procedure'] ['scope of NCAT Order Making Powers' 'quiet Enjoyment' 'compensation Under S 187(1)(d) of the Residential Tenancies Act 2010 (nsw)' 'ancillary Orders Under S 188(c) of the Residential Tenancies Act 2010 (nsw)' 'remittal to Differently Constituted Tribunal']

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Procedural Posture

Appeal Concerning NCAT Power to Make Orders Under the Residential Tenancies Act 2010 (nsw) / Appeal From Decision of the Consumer and Commercial Division of NCAT Dated 27 February 2015

Legal Issues

  1. 1 ['Whether NCAT had power under the Residential Tenancies Act 2010 (NSW) to order Housing NSW to relocate Ms Hamilton to alternative premises under its control and management.' 'Whether the relocation order could be characterised as an order requiring action in performance of a residential tenancy agreement under s 187(1)(b) of the Residential Tenancies Act 2010 (NSW).' 'Whether the relocation order could be characterised as an order directing Housing NSW to comply with a requirement of the Act or regulations under s 187(1)(h) of the Residential Tenancies Act 2010 (NSW).' 'Whether the relocation order could be characterised as an order as to compensation under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW).' 'Whether the relocation order or associated orders could be made as ancillary orders under s 188(c) of the Residential Tenancies Act 2010 (NSW).' 'Whether the matter should be remitted to a differently constituted Tribunal.']

Ratio Decidendi

The Tribunal lacked power to make the relocation order and associated orders. The relocation order was not an order requiring performance of the residential tenancy agreement under s 187(1)(b), nor an order directing compliance with s 50(3) under s 187(1)(h), because the relevant obligation to take reasonable steps related to Ms Hamilton's use of the existing residential premises the subject of the agreement, not relocation to other premises. Although s 187(1)(d) permits non-monetary compensation, the relocation order went beyond and could not be characterised as compensation for the loss caused by interference with quiet enjoyment. Because there was no primary power to make the...

Court Disposition

Appeal allowed; decision under appeal set aside; matter remitted to the Consumer and Commercial Division of NCAT constituted by a different member.

Orders

  • ['The appeal is allowed.' 'The decision under appeal is set aside.' 'Remit the matter to the Consumer and Commercial Division of the Civil and Administrative Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise...