Prior v Al-Ali [2020] NSWCATAP 222

Prior v Al-Ali [2020] NSWCATAP 222

The Tribunal erred in law because, after finding that the garage facility had been withdrawn from 27 April 2019 and that the appellant and his family had been deprived and inconvenienced in the use of the premises since then, it gave no reason for not selecting that date as the specified day under s 44(1)(b). Its selection of 11 March 2020 was so unreasonable that no reasonable decision-maker would make it. The Tribunal's discretion also miscarried because it effectively penalised the appellant for not applying earlier, despite s 44(3) permitting an application before the end of the tenancy and s 44(6)(a) limiting the effect of an excessive rent order to not more than 12 months.

Jurisdiction
Australia
Judgment Date
30 October 2020
Procedural Posture
Internal Appeal From a Decision of the Consumer and Commercial Division of the Tribunal in Residential Tenancy Proceedings / Appeal Panel Decision
Outcome
Appeal allowed; Tribunal orders set aside and substituted excessive rent and payment orders made; no order as to costs unless the appellant seeks a different costs order.
Legal Topics
['excessive Rent' 'withdrawal of Facilities Provided With Residential Premises' 'error of Law' 'discretion Miscarried' 'internal Appeal' 'costs']
['residential Tenancy Law' 'civil and Administrative Procedure'] ['excessive Rent' 'withdrawal of Facilities Provided With Residential Premises' 'error of Law' 'discretion Miscarried' 'internal Appeal' 'costs']

Case Brief

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Procedural Posture

Internal Appeal From a Decision of the Consumer and Commercial Division of the Tribunal in Residential Tenancy Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the appellant had a right to appeal on a question of law under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal applied the correct test under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) when determining the date from which the excessive rent order should take effect.' "Whether the Tribunal's discretion miscarried by selecting 11 March 2020 rather than 27 April 2019 as the operative date for the rent reduction."]

Ratio Decidendi

The Tribunal erred in law because, after finding that the garage facility had been withdrawn from 27 April 2019 and that the appellant and his family had been deprived and inconvenienced in the use of the premises since then, it gave no reason for not selecting that date as the specified day under s 44(1)(b). Its selection of 11 March 2020 was so unreasonable that no reasonable decision-maker would make it. The Tribunal's discretion also miscarried because it effectively penalised the appellant for not applying earlier, despite s 44(3) permitting an application before the end of the tenancy and s 44(6)(a) limiting the effect of an excessive rent order to not more than 12 months.

Court Disposition

Appeal allowed; Tribunal orders set aside and substituted excessive rent and payment orders made; no order as to costs unless the appellant seeks a different costs order.

Orders

  • ['The appeal is allowed.' 'The orders made by the Tribunal in proceedings RT 20/16225 are set aside.' 'The rent payable under the residential tenancy agreement between the appellant and the respondent is excessive, and from 27 April 2019 to 26 April 2020 the rent for the residential premises must not exceed $370.00...