Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74

Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74

There was no Commonwealth law inconsistent with State law on tenancy evictions; COVID-19 emergency provisions do not apply to tribunal orders made before the moratorium period; the refusal to issue a subpoena by the Registrar stands, as the factual question it sought to address was outside the permitted scope of appeal; procedural irregularities regarding notice of appearance did not warrant vacating the hearing date; therefore, the applicant's motion must be dismissed.

Parties
Applicant: Stephen Noel Herbert; First Respondent: New South Wales Land and Housing Corporation; Second Respondent: New South Wales Civil and Administrative Tribunal
Jurisdiction
Australia
Judgment Date
22 April 2020
Procedural Posture
Application for Leave to Appeal – Civil / Interlocutory Motion to Vacate Hearing Date and Related Relief Prior to Determination of Leave to Appeal
Outcome
Applicant's notice of motion dismissed; costs to be respondent's costs in the application for leave to appeal.
Legal Topics
Appeal – Question of Law, Request to Issue Subpoena – Refusal of Request by Registrar – Review of Registrar's Decision, Application to Vacate Hearing Date – Termination of Residential Tenancy Agreement – Effect of COVID 19 Pandemic – Moratorium on Rental Tenancy Evictions, Appearance – Failure to File Notice of Appearance, Operation of State Law – Whether Inconsistent Federal Law – S 109 Constitution
Civil Procedure Constitutional Law Landlord and Tenant Appeal – Question of Law Request to Issue Subpoena – Refusal of Request by Registrar – Review of Registrar's Decision Application to Vacate Hearing Date – Termination of Residential Tenancy Agreement – Effect of COVID 19 Pandemic – Moratorium on Rental Tenancy Evictions Appearance – Failure to File Notice of Appearance Operation of State Law – Whether Inconsistent Federal Law – S 109 Constitution

Case Brief

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Parties

Stephen Noel Herbert

Applicant

New South Wales Land and Housing Corporation

First Respondent

New South Wales Civil and Administrative Tribunal

Second Respondent

Procedural Posture

Application for Leave to Appeal – Civil / Interlocutory Motion to Vacate Hearing Date and Related Relief Prior to Determination of Leave to Appeal

Legal Issues

  1. 1 Whether the COVID-19 pandemic and related governmental actions require a moratorium on tenant evictions enforceable in this proceeding; whether there is a Commonwealth law inconsistent with State law within the meaning of s 109 of the Constitution; whether the applicant was entitled to issuance of a subpoena refused by the Registrar; failure to file notice of appearance in the proceedings by respondents; whether the scheduled hearing date for the application for leave to appeal should be vacated.

Ratio Decidendi

There was no Commonwealth law inconsistent with State law on tenancy evictions; COVID-19 emergency provisions do not apply to tribunal orders made before the moratorium period; the refusal to issue a subpoena by the Registrar stands, as the factual question it sought to address was outside the permitted scope of appeal; procedural irregularities regarding notice of appearance did not warrant vacating the hearing date; therefore, the applicant's motion must be dismissed.

Court Disposition

Applicant's notice of motion dismissed; costs to be respondent's costs in the application for leave to appeal.

Orders

  • Dismiss the applicant's notice of motion filed on 15 April 2020.
  • Order that the costs of the motion be the respondent's costs in the application for leave to appeal.