Bartush v Ale [2017] NSWCATAP 161

Bartush v Ale [2017] NSWCATAP 161

The Appeal Panel allowed the appeal because the Tribunal Member's refusal to extend time was vitiated by errors of law: he failed to give adequate reasons explaining how the merits of the landlord's case were considered and why any prejudice to the tenants was considerable, and he took into account matters about the tenants being properly informed, expecting the claim had expired, and suffering actual prejudice for which no evidence was identified. The appropriate course was to set aside the decision and remit the application for consideration of the extension of time and, if granted, determination on the merits.

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Review of a Consumer and Commercial Division Decision Dated 7 July 2016 Dismissing the Landlord's Application as Out of Time
Outcome
Appeal allowed; decision of 7 July 2016 set aside; application remitted to the Consumer and Commercial Division.
Legal Topics
['extension of Time to Commence Application' 'adequacy of Reasons' 'findings Made Without Evidence' 'prejudice From Delay' 'internal Appeal']
['residential Tenancy' 'civil Procedure' 'administrative Law'] ['extension of Time to Commence Application' 'adequacy of Reasons' 'findings Made Without Evidence' 'prejudice From Delay' 'internal Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Review of a Consumer and Commercial Division Decision Dated 7 July 2016 Dismissing the Landlord's Application as Out of Time

Legal Issues

  1. 1 ['Whether the Tribunal Member gave adequate reasons for refusing to extend time under s41 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal Member made findings about prejudice to the tenants without evidence.' "Whether the refusal to extend time and dismissal of the landlord's application should be set aside." 'Whether the application should be remitted rather than determined by the Appeal Panel.']

Ratio Decidendi

The Appeal Panel allowed the appeal because the Tribunal Member's refusal to extend time was vitiated by errors of law: he failed to give adequate reasons explaining how the merits of the landlord's case were considered and why any prejudice to the tenants was considerable, and he took into account matters about the tenants being properly informed, expecting the claim had expired, and suffering actual prejudice for which no evidence was identified. The appropriate course was to set aside the decision and remit the application for consideration of the extension of time and, if granted, determination on the merits.

Court Disposition

Appeal allowed; decision of 7 July 2016 set aside; application remitted to the Consumer and Commercial Division.

Orders

  • ['Appeal allowed.' 'Set aside the decision of 7 July 2016.' "Remit the application to the Consumer and Commercial Division of the Tribunal for consideration of the Appellant's application for an extension of time within which to commence the application and, if an extension is granted, determination of the...