Sesay v Duran [2023] NSWCATAP 124

Procedural Posture

Application to Set Aside Appeal Panel Decision Dismissing Appeal for Non Appearance in Residential Tenancy Proceedings / Appeal Panel Determination on the Papers of Out of Time Set Aside Application

Legal Issues

1. 1 ['Whether the application to set aside the Appeal Panel decision was filed within time or whether time should be extended under s 41 of the NCAT Act.' "Whether the requirements in cl 9(1)(b) of the Civil and Administrative Tribunal Regulation 2022 were satisfied because the dismissal decision was made in the appellant's absence and her case was not adequately put." 'Whether the discretion to set aside the dismissal decision should be exercised, including whether there would be a real likelihood of injustice if the decision stood and whether the appellant had an arguable case on appeal.' 'Whether the set aside application could be determined on the papers without an oral hearing.']

Ratio Decidendi

Although the dismissal decision was made in the appellant's absence and her case was not adequately put, the set aside application was filed three weeks out of time and no legitimate reason for the delay was shown. Any prejudice to the landlord could not be identified precisely, but possession had been returned to the landlord. The appellant's proposed challenge had little prospect of success because the Tribunal had heard both parties and it was open to terminate the tenancy for rent arrears and non-payment of rent and make an order for possession. Strict compliance with the time limit would not work an injustice, so an extension of time was refused and the set aside application was...

Court Disposition

Extension of time refused; set aside application dismissed.

Orders

• ['An extension of time to file the set aside application is refused.' 'The set aside application is dismissed.']