Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253

Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253

Although the matter was listed as a directions hearing, the appellant was legally represented, the Tribunal's intention to hear and determine the application was apparent, and no protest or request for further opportunity to file evidence was made. The appellant accepted the residential tenancy agreement and non-payment of rent, and the alleged implied term or concurrent agreement did not provide a legitimate basis to resist termination because it contradicted the express tenancy terms or could be pursued separately in an appropriate forum. In any event, the further evidence relied on in the appeal did not create a realistic prospect of a better outcome, so any procedural unfairness would...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Internal Appeal Concerning Termination of Residential Tenancy Agreement and Possession Orders / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders Made on 14 March 2023
Outcome
Leave to appeal refused; appeal dismissed except for variation of the possession date.
Legal Topics
['termination of Residential Tenancy' 'possession of Residential Premises' 'non Payment of Rent' 'procedural Fairness' 'leave to Appeal' 'alleged Concurrent Agreement or Equitable Interest in Property']
['residential Tenancies' 'administrative Law'] ['termination of Residential Tenancy' 'possession of Residential Premises' 'non Payment of Rent' 'procedural Fairness' 'leave to Appeal' 'alleged Concurrent Agreement or Equitable Interest in Property']

Case Brief

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Procedural Posture

Internal Appeal Concerning Termination of Residential Tenancy Agreement and Possession Orders / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders Made on 14 March 2023

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness by determining the application when the matter had been listed as a directions hearing and the appellant had not filed evidence.' "Whether the appellant's alleged special conditions, implied terms or concurrent agreement gave a basis to resist termination and possession orders under the Residential Tenancies Act 2010 (NSW)." "Whether any denial of procedural fairness was material to the Tribunal's decision." 'Whether the possession order should be varied to allow time for the appellant to vacate the property.']

Ratio Decidendi

Although the matter was listed as a directions hearing, the appellant was legally represented, the Tribunal's intention to hear and determine the application was apparent, and no protest or request for further opportunity to file evidence was made. The appellant accepted the residential tenancy agreement and non-payment of rent, and the alleged implied term or concurrent agreement did not provide a legitimate basis to resist termination because it contradicted the express tenancy terms or could be pursued separately in an appropriate forum. In any event, the further evidence relied on in the appeal did not create a realistic prospect of a better outcome, so any procedural unfairness would...

Court Disposition

Leave to appeal refused; appeal dismissed except for variation of the possession date.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed except for varying order 2 made on 14 March 2023 in proceedings RT 23/03534 so that the date upon which possession is to be given is 28 days after the date of these orders.' 'Note that the stay order made by consent on 29 March 2023 is lifted by virtue of these...