Kemsley v NSW Land and Housing Corporation [2020] NSWCATAP 188

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kemsley v NSW Land and Housing Corporation [2020] NSWCATAP 188 Hearing dates: 08 July 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member L Wilson, Senior Member Decision: (1) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), extend the time for lodging the notice of appeal to 30 April 2020. (2) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), to the extent required, extend the time for the filing of the application in the proceedings SH 20/07471 to 22 August 2019. (3) Leave to appeal is refused. (4) Appeal is dismissed. (5) The stay order made on 7 May 2020 is lifted. (6) Pursuant to s 188(b) of the Residential Tenancies Act 2010 (NSW) Order 3 made on 8 April 2020 is varied to 28 days after the date of these orders. Catchwords: LAND LAW – residential tenancy – whether the Tribunal erred in its consideration of the discretionary provisions of s 91 and s 154E of the Residential Tenancies Act 2010 – whether the Tribunal erred in concluding that there are no exceptional circumstances before the Tribunal justifying a period of suspension beyond the maximum 28 day period pursuant to s 154G of the Residential Tenancies Act 2010 – whether the application to terminate the tenancy was made out of time and whether the Tribunal was required to consider whether the application was within time but had failed to do so – whether the Tribunal unreasonably concluded that the appellant would not suffer "unfair hardship" if the tenancy was terminated – alternatively whether that finding was against the weight of the evidence APPEAL – whether the Tribunal failed to afford the appellant procedural fairness Legislation Cited: Anti-Discrimination Act (NSW) 1977 Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Rules 2014 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79 Andrewartha v Weng [2019] NSWCATCD 55 Bauskis v Liew [2013] NSWCA 297 BMF v Commissioner Victims Rights [2020] NSWCATAD 97 Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144 Choy v Rugsat [2020] NSWCATAP 88 Collins v Urban [2014] NSWCATAP 17 CRG v Children's Guardian [2017] NSWCATAD 295 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 House v R (1936) 55 CLR 499 Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Najmitdinov v Woolworth Group Limited [2020] NSWCATAP 15 NSW Land and Housing Corporation v Pauley [2019] NSWCATCD (unreported) Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rogers v Vinoly [2016] NSWCATAP 2 The Commonwealth v Verwayen (1990) 170 CLR 394 Zheng v Kim [2019] NSWCATAP 285 Texts Cited: None cited Category: Principal judgment Parties: Kylie Anne Kemsley (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: R Mansfed (Appellant)