Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703

Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703

Leave to appeal was granted on ground 1 because it raised a significant question of statutory construction, but the ground failed. The cancellation of Mr Herbert's rental rebate did not constitute an increase in rent payable requiring notice under s 41 of the Residential Tenancies Act 2010 (NSW). The rent payable under the tenancy was $645 per week, with the rebate operating only as a waiver or concession while current; once cancelled, Mr Herbert was obliged to pay $645 per week, and his failure to do so supported the non-payment termination process. Ground 2 identified a defect in the termination notice because it included $4,748.90 from the previous tenancy that was subject to a...

Jurisdiction
Australia
Judgment Date
02 December 2019
Procedural Posture
Appeal on a Question of Law From a Decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales
Outcome
Leave to appeal granted in respect of ground (1), leave refused in respect of ground (2), and the appeal dismissed.
Legal Topics
['jurisdictional Error' 'rent Rebate Cancellation' 'rent Increase Notice' 'residential Tenancy Termination' 'non Payment Termination Notice' 'new Point on Appeal' 'anshun Principle' 'defects in Termination Notices']
['administrative Law' 'landlord and Tenant' 'practice and Procedure' 'social Housing'] ['jurisdictional Error' 'rent Rebate Cancellation' 'rent Increase Notice' 'residential Tenancy Termination' 'non Payment Termination Notice' 'new Point on Appeal' 'anshun Principle' 'defects in Termination Notices']

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Procedural Posture

Appeal on a Question of Law From a Decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether cancellation of a social housing rental rebate required a rent increase notice under s 41 of the Residential Tenancies Act 2010 (NSW).' 'Whether the non-payment termination notice was invalid because it included arrears from a previous tenancy that were subject to a repayment plan.' 'Whether grounds not raised before the Tribunal or Appeal Panel should be permitted to be raised in the Supreme Court appeal.' 'Whether the Tribunal or Appeal Panel made jurisdictional error in upholding termination of the residential tenancy agreement.']

Ratio Decidendi

Leave to appeal was granted on ground 1 because it raised a significant question of statutory construction, but the ground failed. The cancellation of Mr Herbert's rental rebate did not constitute an increase in rent payable requiring notice under s 41 of the Residential Tenancies Act 2010 (NSW). The rent payable under the tenancy was $645 per week, with the rebate operating only as a waiver or concession while current; once cancelled, Mr Herbert was obliged to pay $645 per week, and his failure to do so supported the non-payment termination process. Ground 2 identified a defect in the termination notice because it included $4,748.90 from the previous tenancy that was subject to a...

Court Disposition

Leave to appeal granted in respect of ground (1), leave refused in respect of ground (2), and the appeal dismissed.

Orders

  • ['Grant leave to appeal in respect of ground (1) and refuse leave in respect of ground (2).' 'Dismiss the appeal.' 'Dissolve the stay of execution of the writ of possession granted by Ierace J on 22 August 2019 effective on and from 16 December 2019.' 'Reserve costs.' 'Grant liberty to the parties to apply to my...