Herbert v NSW Land and Housing Corporation [2020] NSWCA 80

Herbert v NSW Land and Housing Corporation [2020] NSWCA 80

Leave to appeal was refused because none of the applicant's proposed grounds was arguable. The s 41 argument failed because cancellation of the rental rebate did not increase the rent payable, which remained $645 per week. The other proposed grounds were irrelevant, dependent on the failed s 41 argument, not raised below, or had no apparent relevance. Although there were arguable errors concerning the defective termination notice, those errors were not relied on in the proposed appeal, had not been raised before the Tribunal or Appeal Panel, could have been addressed by evidence, and were not likely to have been material to the outcome.

Jurisdiction
Australia
Judgment Date
30 April 2020
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of a Single Judge of the Supreme Court Dismissing an Appeal From the Civil and Administrative Tribunal Appeal Panel
Outcome
Summons seeking leave to appeal dismissed with costs; stay of execution of the warrant for possession dissolved.
Legal Topics
['leave to Appeal' 'question of Law Under Civil and Administrative Tribunal Act 2013 (nsw), S 83' 'termination of Residential Tenancy Agreement' 'rental Rebate' 'termination Notice' 'new Matters on Appeal' 'warrant for Possession']
['administrative Law' 'residential Tenancies' 'appeals'] ['leave to Appeal' 'question of Law Under Civil and Administrative Tribunal Act 2013 (nsw), S 83' 'termination of Residential Tenancy Agreement' 'rental Rebate' 'termination Notice' 'new Matters on Appeal' 'warrant for Possession']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of a Single Judge of the Supreme Court Dismissing an Appeal From the Civil and Administrative Tribunal Appeal Panel

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the primary judge's orders concerning a termination order made by the Civil and Administrative Tribunal." "Whether cancellation of the applicant's rental rebate required at least 60 days written notice under Residential Tenancies Act 2010 (NSW), s 41 and invalidated the termination order." 'Whether proposed grounds concerning arrears under an earlier tenancy agreement, Residential Tenancies Act 2010 (NSW), s 89(2), Minors (Property and Contracts) Act 1970, s 19, Residential Tenancies Act 2010 (NSW), s 154D(3)(b), and Australian Constitution, s 109 were arguable.' 'Whether arguable errors concerning a defective termination notice should be considered where they were not pressed in the proposed appeal and had not been raised before the Tribunal or Appeal Panel.']

Ratio Decidendi

Leave to appeal was refused because none of the applicant's proposed grounds was arguable. The s 41 argument failed because cancellation of the rental rebate did not increase the rent payable, which remained $645 per week. The other proposed grounds were irrelevant, dependent on the failed s 41 argument, not raised below, or had no apparent relevance. Although there were arguable errors concerning the defective termination notice, those errors were not relied on in the proposed appeal, had not been raised before the Tribunal or Appeal Panel, could have been addressed by evidence, and were not likely to have been material to the outcome.

Court Disposition

Summons seeking leave to appeal dismissed with costs; stay of execution of the warrant for possession dissolved.

Orders

  • ['Dismiss the summons seeking leave to appeal filed 11 December 2019.' "Order the applicant pay the first respondent's costs of the summons." 'Dissolve the order staying the execution of the warrant for possession issued on 26 July 2019.']