Mohd v Basha [2022] NSWCATAP 351

Mohd v Basha [2022] NSWCATAP 351

Section 89(5) of the Residential Tenancies Act 2010 (NSW) confers a discretionary, not mandatory, power to make a termination order after a finding of frequent failure to pay rent. Because the Tribunal's written reasons did not mention the discretion, the Tribunal either failed to recognise it, overlooked it, or failed to give reasons for exercising it against the tenants. Each possibility involved an error of law requiring the appeal to be upheld, the orders set aside, and the proceedings remitted to a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
10 November 2022
Procedural Posture
Appeal by Tenants From Residential Tenancy Termination and Possession Orders / Appeal Panel Decision
Outcome
Appeal upheld; Tribunal orders set aside; proceedings remitted to the Tribunal, differently constituted, to be heard according to law.
Legal Topics
['termination by Landlord' 'frequent Failure to Pay Rent' 'residential Tenancies Act 2010 (nsw), S 89(5)' 'discretionary Power' 'adequacy of Reasons' 'remittal']
['residential Tenancies' 'administrative Law'] ['termination by Landlord' 'frequent Failure to Pay Rent' 'residential Tenancies Act 2010 (nsw), S 89(5)' 'discretionary Power' 'adequacy of Reasons' 'remittal']

Case Brief

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Procedural Posture

Appeal by Tenants From Residential Tenancy Termination and Possession Orders / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether, once satisfied that a tenant has frequently failed to pay rent, the Tribunal must make a termination order under s 89(5) of the Residential Tenancies Act 2010 (NSW) or whether the decision is discretionary.' 'Whether the Tribunal erred by failing to recognise, exercise, or give reasons for the exercise of the discretion under s 89(5).']

Ratio Decidendi

Section 89(5) of the Residential Tenancies Act 2010 (NSW) confers a discretionary, not mandatory, power to make a termination order after a finding of frequent failure to pay rent. Because the Tribunal's written reasons did not mention the discretion, the Tribunal either failed to recognise it, overlooked it, or failed to give reasons for exercising it against the tenants. Each possibility involved an error of law requiring the appeal to be upheld, the orders set aside, and the proceedings remitted to a differently constituted Tribunal.

Court Disposition

Appeal upheld; Tribunal orders set aside; proceedings remitted to the Tribunal, differently constituted, to be heard according to law.

Orders

  • ['Appeal upheld.' 'The orders of the Tribunal made on 8 August 2022 are set aside.' 'The proceedings are remitted to the Tribunal, differently constituted, to be heard according to law.' 'Order 7 made by the Appeal Panel on 9 September 2022, and continued on 6 October 2022, is continued (except as varied by the...