Matthew Bryan v Lilly Gorgievski and Les Gorgievski [2015] NSWCATAP 186

Matthew Bryan v Lilly Gorgievski and Les Gorgievski [2015] NSWCATAP 186

The Tribunal erred in law by treating Mr Bryan as having had an adequate opportunity to put his case on 20 March 2015, when the 19 June 2015 proceedings concerned different orders and required consideration of s 188 of the Residential Tenancies Act 2010 (NSW), and by misstating or inadequately explaining the cl 9 test. However, the error was not material and caused no injustice because Mr Bryan had no defence to the rent arrears, could not pay the arrears, had little prospect of securing another repayment plan, his compensation claim was contested and could not be used as a set off, and the same decision would have been made. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
03 September 2015
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Against Dismissal of Application to Set Aside Decision Made in Absence of Appellant
Outcome
Appeal dismissed
Legal Topics
['internal Appeal' 'set Aside Application' 'decision Made in Absence of a Party' 'termination of Residential Tenancy' 'rent Arrears' 'discretionary Decision' 'error of Law' 'substantial Miscarriage of Justice']
['administrative Law' 'residential Tenancy Law' 'civil Procedure'] ['internal Appeal' 'set Aside Application' 'decision Made in Absence of a Party' 'termination of Residential Tenancy' 'rent Arrears' 'discretionary Decision' 'error of Law' 'substantial Miscarriage of Justice']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Against Dismissal of Application to Set Aside Decision Made in Absence of Appellant

Legal Issues

  1. 1 ["Whether the Tribunal erred in dismissing Mr Bryan's application to set aside the decision made on 19 June 2015 in his absence." 'Whether the Tribunal applied the correct test under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW).' 'Whether any error warranted setting aside the 29 June 2015 decision or remitting the matter.' 'Whether Mr Bryan suffered injustice because his absence meant his case was not adequately put.']

Ratio Decidendi

The Tribunal erred in law by treating Mr Bryan as having had an adequate opportunity to put his case on 20 March 2015, when the 19 June 2015 proceedings concerned different orders and required consideration of s 188 of the Residential Tenancies Act 2010 (NSW), and by misstating or inadequately explaining the cl 9 test. However, the error was not material and caused no injustice because Mr Bryan had no defence to the rent arrears, could not pay the arrears, had little prospect of securing another repayment plan, his compensation claim was contested and could not be used as a set off, and the same decision would have been made. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']