Gurisik v Gurisik [2017] NSWCATAP 78

Gurisik v Gurisik [2017] NSWCATAP 78

The appellant was not denied procedural fairness because he was on notice of the jurisdictional issue, received the respondents' material well before the hearing, did not seek to file further evidence, and the Tribunal was entitled to set its own procedure. Section 94 of the Residential Tenancies Act 2010 (NSW) was to be construed by reference to the 2010 Act, particularly ss 8, 13 and 94, not by importing a definition from the repealed 1987 Act. The Tribunal's finding that the 1991 oral agreement was not an agreement for the sale of land conferring a right to occupy was open on the evidence and not against the weight of evidence. The proposed new documents were not shown to be...

Jurisdiction
Australia
Judgment Date
04 April 2017
Procedural Posture
Appeal From an Ancillary Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning Jurisdiction to Determine an Application for a Termination Order Under S 94 of the Residential Tenancies Act 2010 (nsw). / Appeal Panel Hearing of Appeal and Application for Leave to Appeal.
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['meaning of Residential Tenancy Agreement' 'ncat Jurisdiction' 'termination Order Under S 94 of the Residential Tenancies Act 2010 (nsw)' 'agreement for the Sale of Land Exception' 'leave to Appeal' 'weight of Evidence' 'significant New Evidence']
['residential Tenancies' 'administrative Law' 'statutory Interpretation' 'procedural Fairness'] ['meaning of Residential Tenancy Agreement' 'ncat Jurisdiction' 'termination Order Under S 94 of the Residential Tenancies Act 2010 (nsw)' 'agreement for the Sale of Land Exception' 'leave to Appeal' 'weight of Evidence' 'significant New Evidence']

Case Brief

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Procedural Posture

Appeal From an Ancillary Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning Jurisdiction to Determine an Application for a Termination Order Under S 94 of the Residential Tenancies Act 2010 (nsw). / Appeal Panel Hearing of Appeal and Application for Leave to Appeal.

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness because the Tribunal did not invite him to file evidence in reply and directed him to file material before the respondents.' 'Whether the Tribunal misconstrued s 94 of the Residential Tenancies Act 2010 (NSW) by failing to have regard to the Residential Tenancies Act 1987 (NSW).' "Whether the Tribunal's finding that the 1991 agreement was not an agreement for the sale of land conferring a right to occupy residential premises was against the weight of evidence." 'Whether the appellant had significant new evidence warranting leave to appeal.']

Ratio Decidendi

The appellant was not denied procedural fairness because he was on notice of the jurisdictional issue, received the respondents' material well before the hearing, did not seek to file further evidence, and the Tribunal was entitled to set its own procedure. Section 94 of the Residential Tenancies Act 2010 (NSW) was to be construed by reference to the 2010 Act, particularly ss 8, 13 and 94, not by importing a definition from the repealed 1987 Act. The Tribunal's finding that the 1991 oral agreement was not an agreement for the sale of land conferring a right to occupy was open on the evidence and not against the weight of evidence. The proposed new documents were not shown to be...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal refused' 'Appeal dismissed']