Roach v Swain [2021] NSWCATAP 258

Roach v Swain [2021] NSWCATAP 258

The appellants had not received notice of the hearing, Mr Roach was contacted at work without relevant documents, the appointed agent was unavailable due to the agent's failures, and the Tribunal proceeded without adequately identifying or allowing use of the documents submitted on the appellants' behalf. In those circumstances an adjournment should have been granted, and the appellants were denied a reasonable opportunity to be heard. The orders were therefore set aside and the proceedings remitted for rehearing.

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Residential Tenancy Proceedings / Appeal Panel Decision on Appeal From Orders Made 24 May 2021
Outcome
Appeal allowed; orders made 24 May 2021 set aside; proceedings remitted for rehearing by the Tribunal.
Legal Topics
['procedural Fairness and Natural Justice' 'adjournment of Proceedings' 'residential Tenancy Repairs' 'compensation by Rent Reduction']
['administrative Law' 'residential Tenancies'] ['procedural Fairness and Natural Justice' 'adjournment of Proceedings' 'residential Tenancy Repairs' 'compensation by Rent Reduction']

Case Brief

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Procedural Posture

Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Residential Tenancy Proceedings / Appeal Panel Decision on Appeal From Orders Made 24 May 2021

Legal Issues

  1. 1 ['Whether the appellants were denied procedural fairness because the Tribunal proceeded with the hearing when they had not received notice, their agent was unavailable, and Mr Roach did not have relevant documents.' "Whether new evidence concerning repairs supported a challenge to the Tribunal's compensation orders for mould, blinds and a balcony door."]

Ratio Decidendi

The appellants had not received notice of the hearing, Mr Roach was contacted at work without relevant documents, the appointed agent was unavailable due to the agent's failures, and the Tribunal proceeded without adequately identifying or allowing use of the documents submitted on the appellants' behalf. In those circumstances an adjournment should have been granted, and the appellants were denied a reasonable opportunity to be heard. The orders were therefore set aside and the proceedings remitted for rehearing.

Court Disposition

Appeal allowed; orders made 24 May 2021 set aside; proceedings remitted for rehearing by the Tribunal.

Orders

  • ['The appeal is allowed.' 'The orders made 24 May 2021 are set aside in the proceedings are remitted for rehearing by the Tribunal.' 'On or before 27 August 2021 the applicant (Swain) is to file a bundle of documents to contain all evidence relied upon for the purpose of the remitted proceedings, including a copy of...