Cernaianu-Soare v NSW Land & Housing Corporation [2007] NSWSC 1026

Cernaianu-Soare v NSW Land & Housing Corporation [2007] NSWSC 1026

The Tribunal Member failed to afford procedural fairness to the plaintiff by not allowing her a reasonable opportunity to make submissions and present relevant circumstances for consideration under s 64(2)(b)(ii) of the Residential Tenancies Act 1987 (NSW), constituting an error of law which required setting aside the Tribunal's decision and remitting the matter for redetermination.

Jurisdiction
Australia
Judgment Date
14 September 2007
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld
Legal Topics
['termination of Tenancy' 'procedural Fairness' 'appeal From Tribunal' 'discretionary Powers' 'right to Be Heard']
['administrative Law' 'tenancy Law'] ['termination of Tenancy' 'procedural Fairness' 'appeal From Tribunal' 'discretionary Powers' 'right to Be Heard']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the Tribunal Member failed to comply with the statutory pre-condition under s 64(2)(b) of the Residential Tenancies Act 1987 (NSW)' 'Whether the Tribunal Member failed to afford procedural fairness to the plaintiff' 'Whether there was a failure to properly exercise discretion under s 64(2)(b)(ii) of the Residential Tenancies Act 1987 (NSW)']

Ratio Decidendi

The Tribunal Member failed to afford procedural fairness to the plaintiff by not allowing her a reasonable opportunity to make submissions and present relevant circumstances for consideration under s 64(2)(b)(ii) of the Residential Tenancies Act 1987 (NSW), constituting an error of law which required setting aside the Tribunal's decision and remitting the matter for redetermination.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'The decision of Tribunal Member Farley dated 12 April 2007 is set aside.' 'The matter is remitted to the Tribunal to be determined according to law.' "The first defendant is to pay the plaintiff's costs as agreed or assessed."]