ZID v Green [2018] NSWCATAP 198

ZID v Green [2018] NSWCATAP 198

The planning illegality consisted in the respondents' unauthorised conversion of part of the premises into a separate dwelling, but the Environmental Planning & Assessment Act 1979 did not expressly or impliedly prohibit the making of the tenancy agreement, and its enforcement regime did not require nullification of tenancy agreements. The tenancy agreement was therefore valid, enforceable and a residential tenancy agreement, so rent paid under it was required to be paid and was not recoverable in restitution or under s 47 of the Residential Tenancies Act 2010 NSW. The out-of-time appeal from the termination orders had no utility because possession had already been given up and the...

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Consideration of an Out of Time Appeal From Termination Orders in RT 16/33997, and an Appeal or Application for Leave to Appeal From Compensation Orders in RT 16/29905
Outcome
Application for extension of time refused; application for leave to appeal refused to the extent required; appeal dismissed; no order as to costs.
Legal Topics
['occupancy of Unapproved Granny Flat' 'illegality and Enforceability of Tenancy Agreement' 'termination at Expiry of Fixed Term Tenancy' 'restitution for Rent Paid' 'compensation for Breach of Residential Tenancy Agreement' 'extension of Time to Appeal' 'leave to Appeal' 'costs']
['residential Tenancy Law' 'administrative Law' 'planning and Environmental Law' 'contract Law'] ['occupancy of Unapproved Granny Flat' 'illegality and Enforceability of Tenancy Agreement' 'termination at Expiry of Fixed Term Tenancy' 'restitution for Rent Paid' 'compensation for Breach of Residential Tenancy Agreement' 'extension of Time to Appeal' 'leave to Appeal' 'costs']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Consideration of an Out of Time Appeal From Termination Orders in RT 16/33997, and an Appeal or Application for Leave to Appeal From Compensation Orders in RT 16/29905

Legal Issues

  1. 1 ['Whether time should be extended to appeal from the orders terminating the tenancy agreement and granting possession in RT 16/33997.' 'Whether the tenancy agreement was void and unenforceable because the downstairs flat had been created without Council consent.' 'Whether the appellant could recover rent paid in restitution or under s 47 of the Residential Tenancies Act 2010 NSW because of the planning illegality.' 'Whether the Tribunal erred in rejecting claims for compensation for alleged breaches including quiet enjoyment, withdrawal of facilities, repairs, non-economic loss and consequential expenses.' 'Whether leave to appeal should be granted on factual or discretionary grounds, including alleged procedural unfairness and fresh evidence.' 'Whether any costs order should be made on the appeal.']

Ratio Decidendi

The planning illegality consisted in the respondents' unauthorised conversion of part of the premises into a separate dwelling, but the Environmental Planning & Assessment Act 1979 did not expressly or impliedly prohibit the making of the tenancy agreement, and its enforcement regime did not require nullification of tenancy agreements. The tenancy agreement was therefore valid, enforceable and a residential tenancy agreement, so rent paid under it was required to be paid and was not recoverable in restitution or under s 47 of the Residential Tenancies Act 2010 NSW. The out-of-time appeal from the termination orders had no utility because possession had already been given up and the...

Court Disposition

Application for extension of time refused; application for leave to appeal refused to the extent required; appeal dismissed; no order as to costs.

Orders

  • ['The application for an extension of time to appeal from the orders made in proceedings RT 16/33997 is refused.' 'To the extent that leave to appeal from the orders made in proceedings RT 16/29905 is sought the application is refused.' 'The appeal is dismissed.' 'No order as to costs.']