Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28

Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28

Section 91 of the Residential Tenancies Act 2010 (NSW) confers discretion upon the Tribunal to make a termination order; it does not impose a mandatory duty regardless of the circumstances. The District Court erred in holding otherwise. The Tribunal was entitled to take into account the impact of termination on the tenant's medical treatment, rehabilitation, and personal hardship. No error of law occurred in the Tribunal's exercise of discretion.

Jurisdiction
Australia
Judgment Date
26 February 2014
Procedural Posture
Appeal Judicial Review / Court of Appeal Judgment (final Decision)
Outcome
Orders of District Court set aside; appeal from Tribunal decision dismissed; Tribunal orders reinstated.
Legal Topics
['judicial Review' 'residential Tenancies' 'statutory Interpretation' 'discretion of Tribunal' 'termination of Tenancy for Illegal Purposes']
['administrative Law' 'landlord and Tenant'] ['judicial Review' 'residential Tenancies' 'statutory Interpretation' 'discretion of Tribunal' 'termination of Tenancy for Illegal Purposes']

Case Brief

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Procedural Posture

Appeal Judicial Review / Court of Appeal Judgment (final Decision)

Legal Issues

  1. 1 ['Whether the Consumer, Trader and Tenancy Tribunal had discretion to refuse a termination order under s 91 of the Residential Tenancies Act 2010 (NSW)' 'Whether Tribunal took into account irrelevant or permissible considerations in exercising its discretion']

Ratio Decidendi

Section 91 of the Residential Tenancies Act 2010 (NSW) confers discretion upon the Tribunal to make a termination order; it does not impose a mandatory duty regardless of the circumstances. The District Court erred in holding otherwise. The Tribunal was entitled to take into account the impact of termination on the tenant's medical treatment, rehabilitation, and personal hardship. No error of law occurred in the Tribunal's exercise of discretion.

Court Disposition

Orders of District Court set aside; appeal from Tribunal decision dismissed; Tribunal orders reinstated.

Orders

  • ['Set aside orders 1-5 made in the District Court on 23 May 2013.' 'In lieu thereof, dismiss the appeal from the decision of the Consumer, Trader and Tenancy Tribunal.']