Makowska v St George Community Housing Ltd [2021] NSWSC 287

Makowska v St George Community Housing Ltd [2021] NSWSC 287

The summons was dismissed because the Appeal Panel made no error of law on the face of the record and no arguable jurisdictional error was shown. The Tribunal's erroneous application of s 16(1) of the Civil Liability Act 2002 (NSW) was immaterial because, read as a whole, the Tribunal had not found a breach of the right to quiet enjoyment; it had granted a rent reduction under s 44 of the Residential Tenancies Act 2010 (NSW) for reduction of facilities. The remaining grounds before the Appeal Panel concerned factual findings and did not justify leave. In any event, discretionary refusal of judicial review would have been open because the plaintiff failed, without justifiable explanation,...

Jurisdiction
Australia
Judgment Date
26 March 2021
Procedural Posture
Judicial Review of Decision of NSW Civil and Administrative Tribunal Appeal Panel / Final Judgment on Summons
Outcome
Summons dismissed; plaintiff ordered to pay the first defendant's costs in this Court.
Legal Topics
['judicial Review' 'statutory Appeal Not Pursued' 'discretionary Refusal of Relief' 'error of Law' 'jurisdictional Error' 'irrelevant Consideration' 'no Evidence' 'unreasonableness' 'quiet Enjoyment' 'reduction of Rent for Reduction of Facilities' 'compensation for Non Economic Loss']
['administrative Law' 'residential Tenancies' 'leases and Tenancies'] ['judicial Review' 'statutory Appeal Not Pursued' 'discretionary Refusal of Relief' 'error of Law' 'jurisdictional Error' 'irrelevant Consideration' 'no Evidence' 'unreasonableness' 'quiet Enjoyment' 'reduction of Rent for Reduction of Facilities' 'compensation for Non Economic Loss']

Case Brief

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Procedural Posture

Judicial Review of Decision of NSW Civil and Administrative Tribunal Appeal Panel / Final Judgment on Summons

Legal Issues

  1. 1 ['Whether relief in the supervisory jurisdiction should be refused because the plaintiff did not pursue the statutory appeal route from the Appeal Panel within time or seek leave to appeal.' "Whether the Appeal Panel erred in law by treating the Tribunal's erroneous application of s 16(1) of the Civil Liability Act 2002 (NSW) as immaterial." "Whether the Tribunal had found a breach of the tenant's right to quiet enjoyment in relation to flooding and deterioration of the lawn area." 'Whether the plaintiff established jurisdictional error by irrelevant consideration, no evidence, or manifest unreasonableness.' 'Whether the Appeal Panel erred in refusing leave on grounds that turned on factual findings.']

Ratio Decidendi

The summons was dismissed because the Appeal Panel made no error of law on the face of the record and no arguable jurisdictional error was shown. The Tribunal's erroneous application of s 16(1) of the Civil Liability Act 2002 (NSW) was immaterial because, read as a whole, the Tribunal had not found a breach of the right to quiet enjoyment; it had granted a rent reduction under s 44 of the Residential Tenancies Act 2010 (NSW) for reduction of facilities. The remaining grounds before the Appeal Panel concerned factual findings and did not justify leave. In any event, discretionary refusal of judicial review would have been open because the plaintiff failed, without justifiable explanation,...

Court Disposition

Summons dismissed; plaintiff ordered to pay the first defendant's costs in this Court.

Orders

  • ['Dismiss the summons filed by the plaintiff on 2 October 2020.' 'Order that the plaintiff pay the costs of the first defendant in this Court.']