O’Connor v McManus [2022] NSWCATAP 93

O’Connor v McManus [2022] NSWCATAP 93

The Tribunal failed to provide the appellant with an opportunity to make submissions regarding extension of time for his claim of arrears of water charges, which amounted to procedural unfairness. The appellant was not legally represented and was entitled to be informed and allowed to provide material on whether an extension of time should be granted. Accordingly, the extension of time for appeal was granted, the appeal upheld, and the matter remitted to a differently constituted Tribunal for determination of when the appellant became aware of the breach and whether claims for water charges outside the statutory period are recoverable.

Parties
Appellant: Humphrey O'Connor; First Respondent: Tyra McManus; Second Respondent: Nicholls Phillip
Jurisdiction
Australia
Judgment Date
30 March 2022
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal upheld, extension of time granted, matter remitted for re-hearing
Legal Topics
Limitation Periods, Procedural Fairness, Water Usage Charges, Extension of Time
Residential Tenancies Civil Procedure Limitation Periods Procedural Fairness Water Usage Charges Extension of Time

Case Brief

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Parties

Humphrey O'Connor

Appellant

Tyra McManus

First Respondent

Nicholls Phillip

Second Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the appellant landlord was denied procedural fairness by not being invited to make submissions on limitation periods and extension of time
  2. 2 Whether the landlord's claim for arrears of water usage charges was brought within the statutory time limit under section 39 of the Residential Tenancies Act 2010 (NSW) and Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW)
  3. 3 When did the appellant become aware of the breach of the residential tenancy agreement for non-payment of water charges

Ratio Decidendi

The Tribunal failed to provide the appellant with an opportunity to make submissions regarding extension of time for his claim of arrears of water charges, which amounted to procedural unfairness. The appellant was not legally represented and was entitled to be informed and allowed to provide material on whether an extension of time should be granted. Accordingly, the extension of time for appeal was granted, the appeal upheld, and the matter remitted to a differently constituted Tribunal for determination of when the appellant became aware of the breach and whether claims for water charges outside the statutory period are recoverable.

Court Disposition

Appeal upheld, extension of time granted, matter remitted for re-hearing

Orders

  • An extension of time is granted to the appellant to bring the appeal.
  • The appeal be upheld.