Tse v Hang & Anor [2015] NSWCATAP 59

Tse v Hang & Anor [2015] NSWCATAP 59

Although the appellant was denied procedural fairness because she was not personally served with the application commencing the Tribunal proceedings and had no notice of the hearing, her notification to the managing agent that she had separated from her husband and was moving out did not terminate her obligations as a co-tenant under the fixed term Residential Tenancy Agreement. Section 101 of the Residential Tenancies Act 2010 (NSW) did not permit unilateral termination of the fixed term tenancy before expiry, and there was no consent from the co-tenant and landlords or Tribunal order terminating her obligations. She therefore remained bound as a tenant when the Tribunal made the rent...

Jurisdiction
Australia
Judgment Date
16 March 2015
Procedural Posture
Appeal From NCAT Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel Decision
Outcome
Appeal dismissed; stay discharged.
Legal Topics
['leave to Appeal' 'procedural Fairness' 'service of Tribunal Proceedings' 'service of Termination Notice' 'co Tenancy Termination' 'rent Arrears']
['residential Tenancies' 'administrative Law' 'civil Procedure'] ['leave to Appeal' 'procedural Fairness' 'service of Tribunal Proceedings' 'service of Termination Notice' 'co Tenancy Termination' 'rent Arrears']

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

Appeal From NCAT Consumer and Commercial Division Residential Tenancy Orders / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether leave to appeal was required or should be granted where the appellant was not served with the application commencing the Tribunal proceedings and had no notice of the hearing.' "Whether service of a termination notice on the appellant's co-tenant at the residential premises was taken to be service on the appellant under s 223(3) of the Residential Tenancies Act 2010 (NSW)." "Whether personal service of the application commencing Tribunal proceedings was required and whether service could be effected by leaving it at the rented premises when the respondents' agent knew the appellant was not living there." "Whether the appellant's notification to the landlord's agent that she had separated from her husband and was moving out terminated her obligations as a co-tenant under a fixed term residential tenancy agreement." 'Whether the appellant could show that, had she been notified of the Tribunal proceedings, she would have successfully resisted the money order for rent arrears.']

Ratio Decidendi

Although the appellant was denied procedural fairness because she was not personally served with the application commencing the Tribunal proceedings and had no notice of the hearing, her notification to the managing agent that she had separated from her husband and was moving out did not terminate her obligations as a co-tenant under the fixed term Residential Tenancy Agreement. Section 101 of the Residential Tenancies Act 2010 (NSW) did not permit unilateral termination of the fixed term tenancy before expiry, and there was no consent from the co-tenant and landlords or Tribunal order terminating her obligations. She therefore remained bound as a tenant when the Tribunal made the rent...

Court Disposition

Appeal dismissed; stay discharged.

Orders

  • ['Appeal Dismissed.' 'The order dated 4 December 2014 staying the operation of the orders made 23 May 2014 is discharged.']