Rowland v NSW Land and Housing Corporation [2020] NSWCATAP 139

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rowland v NSW Land and Housing Corporation [2020] NSWCATAP 139 Hearing dates: 20 May 2020 Date of orders: 16 July 2020 Decision date: 16 July 2020 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member S Thode, Senior Member Decision: (1) Leave to appeal is granted to the extent that is necessary. (2) The appeal is allowed. (3) Set aside Orders 1, 3, 4, 5, and 6 made by the Tribunal on 18 February 2020. (4) Remit part of the case to a differently constituted Tribunal at first instance for re-determination of the question whether a termination order in respect of the Tenancy Agreement (referred to in the reasons for decision) is to be made pursuant to s 91 (1) of the Residential Tenancies Act 2010 (NSW) (the Act) on the basis that: (a) the circumstances under which the Tribunal must make a termination order because of the effect of s154D (1) and s154D (2) have been established for the reasons set out in the Tribunal's decision dated 18 February 2020, except for the question whether the exception in s154D (3) (b) of the Act is applicable having regard only to the answers to the questions referred to in (b) and (c) below which the Tribunal must re-determine. (b) Whether one or both of the Tenant and Danielle (as identified in the reasons for decision) are persons suffering from a disability within the meaning of the Anti-Discrimination Act 1977 (NSW). (c) If the answer to (b) is yes in relation to one or both of the Tenant and Danielle, whether the Tribunal is satisfied that the termination order otherwise to be made because of the effect of s154D (1) or (2) of the Act would be likely to result in undue hardship to such person(s). (d) If the exception in s154D (3) (b) of the Act is applicable because of the answers to (b) and (c) above, the Tribunal is to determine whether a termination order in respect of the Tenancy Agreement should be made pursuant to s 91 (1) of the Act on the basis that all conditions in s 91 (1) (b) of that Act for the making of a termination order have been established and the only issue to be determined is whether the Tribunal should make such a termination order in the circumstances, including, but not limited to, any relevant circumstances that are contained in findings of the Tribunal set out in its reasons for decision dated 18 February 2020. (e) If the Tribunal decides that a termination order is to be made then the Tribunal is to also determine any questions that may arise as to whether any order for possession takes effect immediately and whether any such order is to be suspended for any period of time. (5) The parties are to be permitted to adduce further evidence concerning the questions referred to in Order 4 above. Catchwords: RESIDENTIAL TENANCY Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Bladen v Mifsud [2020] NSWCATAP 79 Collins v Urban [2014] NSWCATAP 17 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Julie Rowland (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: T Epstein (Appellant)