Francer v Smith [2023] NSWCATCD 82

Francer v Smith [2023] NSWCATCD 82

On the balance of probabilities, there is no residential tenancy agreement between the parties within the meaning of s 13 of the Act. The arrangement is more properly characterised as a former partner remaining in the family home following relationship breakdown, without an intention to create a legal relationship of landlord and tenant. The applicant’s evidence did not establish an agreement; the respondent’s occupation was not pursuant to a tenancy, and there was no sufficient intention to create such a relationship. Therefore, the Tribunal lacks jurisdiction to determine the application.

Parties
Applicant: James Francer; Respondent: Eloise Smith
Jurisdiction
Australia
Judgment Date
20 July 2023
Procedural Posture
Application for Termination of Residential Tenancy / Jurisdictional Determination at Hearing
Outcome
Application dismissed for want of jurisdiction
Legal Topics
Residential Tenancy Agreement, Jurisdiction, Intention to Create Legal Relations
Tenancy Property Law Residential Tenancy Agreement Jurisdiction Intention to Create Legal Relations

Case Brief

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Parties

James Francer

Applicant

Eloise Smith

Respondent

Procedural Posture

Application for Termination of Residential Tenancy / Jurisdictional Determination at Hearing

Legal Issues

  1. 1 Whether a residential tenancy agreement exists between the parties under s 13 of the Residential Tenancies Act 2010 (NSW)
  2. 2 Whether the Tribunal has jurisdiction to determine the application

Ratio Decidendi

On the balance of probabilities, there is no residential tenancy agreement between the parties within the meaning of s 13 of the Act. The arrangement is more properly characterised as a former partner remaining in the family home following relationship breakdown, without an intention to create a legal relationship of landlord and tenant. The applicant’s evidence did not establish an agreement; the respondent’s occupation was not pursuant to a tenancy, and there was no sufficient intention to create such a relationship. Therefore, the Tribunal lacks jurisdiction to determine the application.

Court Disposition

Application dismissed for want of jurisdiction

Orders

  • The application is dismissed as the Tribunal does not have jurisdiction to hear and determine it.