Latimer v Latimer [2022] NSWCATAP 94

Latimer v Latimer [2022] NSWCATAP 94

The appeal was upheld because the Tribunal's reasons for accepting a residential tenancy agreement were inadequate and internally inconsistent. On redetermination, s 9 of the RT Act did not apply because the Respondent's residence arose from a family care arrangement, not a contract of employment or legally binding arrangement to carry out work in connection with the premises. The alleged agreement dated 22 May 2020 was not binding because Anne Latimer lacked the requisite mental capacity to enter it, and its terms and surrounding circumstances supported that conclusion. The Respondent's occupancy was therefore not a residential tenancy agreement, and declarations under s 11 were...

Jurisdiction
Australia
Judgment Date
31 March 2022
Procedural Posture
Appeal From Decision of the Consumer and Commercial Division Concerning Declarations Under the Residential Tenancies Act 2010 (nsw) / Appeal Panel Decision
Outcome
Appeal upheld; dismissal order set aside; declarations made that the alleged agreements were not agreements to which the Residential Tenancies Act 2010 (NSW) applies and that the Respondent's occupancy is not a residential tenancy agreement.
Legal Topics
['declaration Under S 11 of the Residential Tenancies Act 2010 (nsw)' 'employee and Caretaker Arrangements Under S 9 of the Residential Tenancies Act 2010 (nsw)' 'mental Capacity to Enter a Residential Tenancy Agreement' 'adequacy of Reasons' 'family Care Arrangements']
['residential Tenancies' 'civil and Administrative Tribunal Procedure'] ['declaration Under S 11 of the Residential Tenancies Act 2010 (nsw)' 'employee and Caretaker Arrangements Under S 9 of the Residential Tenancies Act 2010 (nsw)' 'mental Capacity to Enter a Residential Tenancy Agreement' 'adequacy of Reasons' 'family Care Arrangements']

Case Brief

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Procedural Posture

Appeal From Decision of the Consumer and Commercial Division Concerning Declarations Under the Residential Tenancies Act 2010 (nsw) / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal gave adequate and internally consistent reasons for finding a valid residential tenancy agreement.' 'Whether an agreement or arrangement under s 9 of the Residential Tenancies Act 2010 (NSW) existed.' "Whether the alleged residential tenancy agreement bearing date 22 May 2020 was binding despite Anne Latimer's dementia and alleged lack of mental capacity." "Whether declarations should be made under s 11 of the Residential Tenancies Act 2010 (NSW) that the Respondent's occupancy was not under a residential tenancy agreement."]

Ratio Decidendi

The appeal was upheld because the Tribunal's reasons for accepting a residential tenancy agreement were inadequate and internally inconsistent. On redetermination, s 9 of the RT Act did not apply because the Respondent's residence arose from a family care arrangement, not a contract of employment or legally binding arrangement to carry out work in connection with the premises. The alleged agreement dated 22 May 2020 was not binding because Anne Latimer lacked the requisite mental capacity to enter it, and its terms and surrounding circumstances supported that conclusion. The Respondent's occupancy was therefore not a residential tenancy agreement, and declarations under s 11 were...

Court Disposition

Appeal upheld; dismissal order set aside; declarations made that the alleged agreements were not agreements to which the Residential Tenancies Act 2010 (NSW) applies and that the Respondent's occupancy is not a residential tenancy agreement.

Orders

  • ['Appeal upheld.' 'The dismissal order made on 10 December 2021 in respect of application number RT21/45882 is set aside.' 'Pursuant to section 11 of the Residential Tenancies Act 2010 (NSW) (the RT Act) it is declared that neither the residential tenancy agreement contended for by the Respondent under s 9 of the RT...