Taylor v Peslak [2018] NSWCATAP 57

Taylor v Peslak [2018] NSWCATAP 57

Time to appeal under r 25(4)(b) commences from oral reasons, not written reasons; appeal was out of time, but on the landlord's explanation and lack of prejudice, extension of time was justified. S 94 of the Residential Tenancies Act 2010 (NSW) does not entitle a landlord to termination by mere application; Tribunal must consider appropriateness in all the circumstances. The original Tribunal correctly assessed and weighed the evidence; as landlord's evidence of hardship was insufficient and tenant's circumstances demonstrated substantial hardship, refusal of termination was appropriate. Leave to appeal was not justified as decision was not against weight of evidence nor unfair or...

Jurisdiction
Australia
Judgment Date
06 March 2018
Procedural Posture
Internal Appeal / Final Determination
Outcome
leave to appeal refused; appeal dismissed
Legal Topics
['termination of Long Term Tenancies' 'time to Appeal' 'leave to Appeal' "meaning of 'circumstances of the Case'" 'statutory Construction']
['residential Tenancies' 'practice and Procedure'] ['termination of Long Term Tenancies' 'time to Appeal' 'leave to Appeal' "meaning of 'circumstances of the Case'" 'statutory Construction']

Case Brief

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Procedural Posture

Internal Appeal / Final Determination

Legal Issues

  1. 1 ['Was the appeal out of time and should the time to appeal be extended?' 'Is a landlord entitled to an order to terminate a long-term tenancy under s 94 of the Residential Tenancies Act 2010 (NSW) upon application, with discretion limited only to timing of vacant possession?' "Was the Tribunal correct in exercising its discretion and dismissing the landlord's application, or was the decision against the weight of evidence or not fair and equitable?"]

Ratio Decidendi

Time to appeal under r 25(4)(b) commences from oral reasons, not written reasons; appeal was out of time, but on the landlord's explanation and lack of prejudice, extension of time was justified. S 94 of the Residential Tenancies Act 2010 (NSW) does not entitle a landlord to termination by mere application; Tribunal must consider appropriateness in all the circumstances. The original Tribunal correctly assessed and weighed the evidence; as landlord's evidence of hardship was insufficient and tenant's circumstances demonstrated substantial hardship, refusal of termination was appropriate. Leave to appeal was not justified as decision was not against weight of evidence nor unfair or...

Court Disposition

leave to appeal refused; appeal dismissed

Orders

  • ['The time to lodge the Notice of Appeal is extended to 14 November 2017.' 'Leave to appeal is refused and the appeal is dismissed.']