Ottoman Investments Pty Ltd v Consumer, Trader and Tenancy Tribunal [2011] NSWSC 1161

Ottoman Investments Pty Ltd v Consumer, Trader and Tenancy Tribunal [2011] NSWSC 1161

The plaintiff was not denied procedural fairness because the Court found that Nathan Elali, and therefore the tenant, knew well before 17 August 2011 that the Tribunal hearing was scheduled; the Tribunal correspondence was probably received at the premises, the occupants were not called to contradict the agent's evidence, the agent's evidence of communications with occupants was accepted, and text messages supported prior knowledge. The tenant gave no credible or sufficient reason for non-attendance or adjournment, no articulated defence to the landlord's claim, and its attendance would not have been likely to alter the result.

Jurisdiction
Australia
Judgment Date
29 September 2011
Procedural Posture
Application for a Declaration and Other Orders in the Nature of Prerogative Relief Under S 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 / Supreme Court Hearing of Summons After Tribunal Orders for Termination, Possession and Payment of Rent Arrears, and Refusal of Rehearing Applications
Outcome
Summons dismissed; plaintiff to pay the second defendant's costs.
Legal Topics
['procedural Fairness' 'consumer, Trader and Tenancy Tribunal' 'prerogative Relief' 'termination and Possession' 'non Payment of Rent' 'adjournment' 'rehearing']
['administrative Law' 'residential Tenancy'] ['procedural Fairness' 'consumer, Trader and Tenancy Tribunal' 'prerogative Relief' 'termination and Possession' 'non Payment of Rent' 'adjournment' 'rehearing']

Case Brief

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Procedural Posture

Application for a Declaration and Other Orders in the Nature of Prerogative Relief Under S 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 / Supreme Court Hearing of Summons After Tribunal Orders for Termination, Possession and Payment of Rent Arrears, and Refusal of Rehearing Applications

Legal Issues

  1. 1 ['Whether the tenant was given notice, or adequate notice, of the Tribunal hearing on 17 August 2011.' "Whether the Tribunal's refusal to adjourn and its determination in the tenant's absence denied the tenant procedural fairness." "Whether the Tribunal's refusals of rehearing applications involved a denial of procedural fairness warranting relief under s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001."]

Ratio Decidendi

The plaintiff was not denied procedural fairness because the Court found that Nathan Elali, and therefore the tenant, knew well before 17 August 2011 that the Tribunal hearing was scheduled; the Tribunal correspondence was probably received at the premises, the occupants were not called to contradict the agent's evidence, the agent's evidence of communications with occupants was accepted, and text messages supported prior knowledge. The tenant gave no credible or sufficient reason for non-attendance or adjournment, no articulated defence to the landlord's claim, and its attendance would not have been likely to alter the result.

Court Disposition

Summons dismissed; plaintiff to pay the second defendant's costs.

Orders

  • ['Summons dismissed.' "Plaintiff to pay the second defendant's costs."]