Xenos v St George Community Housing [2015] NSWCATAP 273

Xenos v St George Community Housing [2015] NSWCATAP 273

The Tribunal member erred in exercising the discretion to terminate the tenancy because he failed to consider material evidence from Mr Crawford, Mr Xenos, Professor Brew and Mr Hampton about the likely effects of eviction and homelessness on the appellant's health, wellbeing, and support services. The finding that termination would cause only inconvenience or disruption was contradicted by that evidence. Those errors meant the decision was not fair and equitable and the appellant may have suffered a substantial miscarriage of justice, so leave was granted and the appeal allowed.

Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Internal Appeal From Termination Order of Residential Tenancy / Appeal Panel Decision
Outcome
Appeal allowed; orders made on 20 April 2015 set aside; proceedings remitted for rehearing by a differently constituted Tribunal; each party to pay their costs of the appeal.
Legal Topics
['termination of Tenancy for Serious or Persistent Threat or Abuse' 'exercise of Discretion' 'failure to Consider Material Evidence' 'adequacy of Reasons' 'leave to Appeal' 'social Housing']
['residential Tenancy Law' 'administrative Law'] ['termination of Tenancy for Serious or Persistent Threat or Abuse' 'exercise of Discretion' 'failure to Consider Material Evidence' 'adequacy of Reasons' 'leave to Appeal' 'social Housing']

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Procedural Posture

Internal Appeal From Termination Order of Residential Tenancy / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal member erred in exercising the discretion to make a termination order under s 92(1)(a) of the Residential Tenancies Act 2010 (NSW).' "Whether the Tribunal member failed to take into account material evidence about homelessness, eviction, and the appellant's health and wellbeing." 'Whether the Tribunal member made erroneous findings of fact and gave inadequate reasons.' 'Whether leave to appeal should be granted on the basis that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable.']

Ratio Decidendi

The Tribunal member erred in exercising the discretion to terminate the tenancy because he failed to consider material evidence from Mr Crawford, Mr Xenos, Professor Brew and Mr Hampton about the likely effects of eviction and homelessness on the appellant's health, wellbeing, and support services. The finding that termination would cause only inconvenience or disruption was contradicted by that evidence. Those errors meant the decision was not fair and equitable and the appellant may have suffered a substantial miscarriage of justice, so leave was granted and the appeal allowed.

Court Disposition

Appeal allowed; orders made on 20 April 2015 set aside; proceedings remitted for rehearing by a differently constituted Tribunal; each party to pay their costs of the appeal.

Orders

  • ['The appeal is allowed.' 'The orders made on 20 April 2015 are set aside.' 'The proceedings are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal.' 'Each party is to pay their costs of the appeal.']