Bogoevski v Stricklands [2015] NSWCATAP 133

Bogoevski v Stricklands [2015] NSWCATAP 133

The Tribunal did not err in finding valid service of a termination notice and in its order for termination for non-payment of rent; there was no denial of procedural fairness in the hearing, nor was the failure to administer an oath to the tenant a breach of natural justice. The presiding member's refusal to disqualify himself did not constitute bias or a reasonable apprehension of bias. However, procedural fairness was denied regarding the summons for hardship documents, and thus that application was set aside. Termination of the tenancy as at 13 February 2015 was proper under both non-payment and periodic tenancy grounds, with corresponding orders for money and occupation fee.

Jurisdiction
Australia
Judgment Date
06 July 2015
Procedural Posture
Appeal / Final Decision on Appeal
Outcome
First appeal dismissed; second appeal allowed in part; orders set out in Annexure A and paragraph 178.
Legal Topics
['appeal on Termination of Tenancy' 'procedural Fairness' 'bias and Disqualification of Member' 'stay of Orders' 'non Payment of Rent' 'termination for Hardship' 'retaliatory Notice' 'summons for Production of Documents']
['residential Tenancies' 'civil Procedure'] ['appeal on Termination of Tenancy' 'procedural Fairness' 'bias and Disqualification of Member' 'stay of Orders' 'non Payment of Rent' 'termination for Hardship' 'retaliatory Notice' 'summons for Production of Documents']

Case Brief

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Procedural Posture

Appeal / Final Decision on Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in terminating the residential tenancy agreement for non-payment of rent' 'Whether procedural fairness was denied to the tenant at first instance' 'Whether the presiding member should have disqualified himself due to apprehended bias' 'Whether the failure to allow issue of a summons resulted in denial of procedural fairness' 'Whether the termination notice was retaliatory under s 115 of the Residential Tenancies Act 2010']

Ratio Decidendi

The Tribunal did not err in finding valid service of a termination notice and in its order for termination for non-payment of rent; there was no denial of procedural fairness in the hearing, nor was the failure to administer an oath to the tenant a breach of natural justice. The presiding member's refusal to disqualify himself did not constitute bias or a reasonable apprehension of bias. However, procedural fairness was denied regarding the summons for hardship documents, and thus that application was set aside. Termination of the tenancy as at 13 February 2015 was proper under both non-payment and periodic tenancy grounds, with corresponding orders for money and occupation fee.

Court Disposition

First appeal dismissed; second appeal allowed in part; orders set out in Annexure A and paragraph 178.

Orders

  • ['Appeal AP 15/06134 (application RT 15/03180) dismissed.' 'Appeal AP 15/10194 allowed in part.' 'Orders in application RT 14/54284 set aside and that application dismissed.' 'Orders in RT 15/03180 and RT 15/04667 set aside and replaced with new orders per Annexure A.' 'Stay orders lifted except as specified above.'...