Wallace v NSW Land and Housing Corporation [2020] NSWSC 142

Wallace v NSW Land and Housing Corporation [2020] NSWSC 142

Leave to appeal was granted because the appeal raised matters of principle and general public importance concerning the proper interpretation of ss 154E and 154F of the Residential Tenancies Act 2010 (NSW). The Primary Member made an error of law and jurisdictional error by narrowing s 154E(1)(a), devaluing favourable witness evidence because it did not address the effect of the illegal activity and because the witnesses may not have known of that activity, when the statute required consideration of the effect of the tenancy. The Appeal Panel erred by attempting to justify that misconstruction. However, the Neighbourhood Impact Statement satisfied s 154F and was not wrongly used. The...

Jurisdiction
Australia
Judgment Date
02 March 2020
Procedural Posture
Judicial Review and Appeal From NSW Civil and Administrative Tribunal Concerning Termination of a Social Housing Residential Tenancy Agreement / Leave to Appeal and Appeal to the Supreme Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed in part; decisions of the Primary Member and Appeal Panel declared vitiated by jurisdictional error, quashed, and remitted to NCAT; first defendant ordered to pay the plaintiff's costs on an ordinary basis.
Legal Topics
['ncat Appeal' 'judicial Review' 'jurisdictional Error' 'termination Order' 'use of Premises for Illegal Purposes' 'neighbourhood Impact Statement' 'mandatory Relevant Considerations']
['administrative Law' 'residential Tenancies' 'social Housing'] ['ncat Appeal' 'judicial Review' 'jurisdictional Error' 'termination Order' 'use of Premises for Illegal Purposes' 'neighbourhood Impact Statement' 'mandatory Relevant Considerations']

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Procedural Posture

Judicial Review and Appeal From NSW Civil and Administrative Tribunal Concerning Termination of a Social Housing Residential Tenancy Agreement / Leave to Appeal and Appeal to the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave to appeal from the Appeal Panel should be granted under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Primary Member and Appeal Panel erred in applying s 154E(1)(a) of the Residential Tenancies Act 2010 (NSW) by narrowing the inquiry to the effect of illegal activity rather than the effect of the tenancy.' 'Whether the Primary Member and Appeal Panel erred in treating the Neighbourhood Impact Statement as satisfying s 154F of the Residential Tenancies Act 2010 (NSW).' 'Whether the decisions of the Primary Member and Appeal Panel should be quashed and remitted to NCAT.']

Ratio Decidendi

Leave to appeal was granted because the appeal raised matters of principle and general public importance concerning the proper interpretation of ss 154E and 154F of the Residential Tenancies Act 2010 (NSW). The Primary Member made an error of law and jurisdictional error by narrowing s 154E(1)(a), devaluing favourable witness evidence because it did not address the effect of the illegal activity and because the witnesses may not have known of that activity, when the statute required consideration of the effect of the tenancy. The Appeal Panel erred by attempting to justify that misconstruction. However, the Neighbourhood Impact Statement satisfied s 154F and was not wrongly used. The...

Court Disposition

Leave to appeal granted; appeal allowed in part; decisions of the Primary Member and Appeal Panel declared vitiated by jurisdictional error, quashed, and remitted to NCAT; first defendant ordered to pay the plaintiff's costs on an ordinary basis.

Orders

  • ['Leave to appeal is granted.' 'The decision of the Primary Member dated 14 June 2019 is vitiated by jurisdictional error.' 'The decision of the Appeal Panel dated 20 September 2019 is vitiated by jurisdictional error.' 'In the nature of certiorari removing into the Court the decision of the Primary Member dated 14...