Rigoni v Tao [2018] NSWCATAP 166

Rigoni v Tao [2018] NSWCATAP 166

The appeal had to be allowed because the Tribunal made the termination order on the incorrect central fact that the tenant had been given a termination notice specifying non-payment of rent. The notice actually given did not state that ground, was not a non-payment termination notice, and could not support a termination order under s 89(5) of the Residential Tenancies Act 2010 (NSW). In those circumstances the Tribunal decision was not fair and equitable under cl 12(1)(a) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 No. 2 (NSW), and the tenant suffered a substantial miscarriage of justice.

Jurisdiction
Australia
Judgment Date
09 July 2018
Procedural Posture
Internal Appeal From Residential Tenancy Termination Orders / Appeal Panel Decision
Outcome
Leave to appeal granted; appeal allowed; Tribunal orders set aside; respondent's application dismissed; stay orders dissolved.
Legal Topics
['termination Notice' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'fresh Evidence on Appeal' 'leave to Appeal on a Ground Other Than a Question of Law' 'points Not Taken Below']
['residential Tenancies' 'civil Procedure' 'administrative Law'] ['termination Notice' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'fresh Evidence on Appeal' 'leave to Appeal on a Ground Other Than a Question of Law' 'points Not Taken Below']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal From Residential Tenancy Termination Orders / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether leave should be granted to appeal on a ground other than a question of law where the Tribunal proceeded on an incorrect factual basis about the termination notice served on the tenant.' 'Whether the notice actually given to the tenant was a non-payment termination notice capable of supporting a termination order under s 89(5) of the Residential Tenancies Act 2010 (NSW).' "Whether the Tribunal's decision was not fair and equitable because a statutory precondition to termination had not been met."]

Ratio Decidendi

The appeal had to be allowed because the Tribunal made the termination order on the incorrect central fact that the tenant had been given a termination notice specifying non-payment of rent. The notice actually given did not state that ground, was not a non-payment termination notice, and could not support a termination order under s 89(5) of the Residential Tenancies Act 2010 (NSW). In those circumstances the Tribunal decision was not fair and equitable under cl 12(1)(a) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 No. 2 (NSW), and the tenant suffered a substantial miscarriage of justice.

Court Disposition

Leave to appeal granted; appeal allowed; Tribunal orders set aside; respondent's application dismissed; stay orders dissolved.

Orders

  • ['Grant leave to the appellant to appeal on a ground other than a question of law.' 'Appeal allowed.' 'The orders of the Tribunal made on 29 March 2018 are set aside.' "In lieu thereof, order the respondent's application be dismissed." 'The stay order made on 24 April 2018, and any other stay order, is dissolved...