Hassani v Afzal [2020] NSWCATAP 219

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hassani v Afzal [2020] NSWCATAP 219 Hearing dates: 8 October 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President J Kearney, Senior Member Decision: (1) Orders 1-6 inclusive, made on 18 August 2020 in application RT 20/26954, are set aside and the proceedings are remitted to the Tribunal, differently constituted, to determine the following questions: (i) Are the tenants' impacted tenants and is the household impacted by COVID-19 within the meaning of the Residential Tenancy Acts 2010 and the Residential Tenancy Regulation 2019 (NSW)? (ii) If yes, the application for termination is to be dismissed. (iii) If no, should a termination order be made? (iv) If a termination order should be made, on what terms, including whether a finding should be made under section 89(5) of the Residential Tenancy Act 2010 (NSW). (2) The remitted proceedings are to be determined in accordance with these reasons and according to law. (3) In respect of the remitted proceedings the following directions are made: (i) On or before 14 days after the date of these orders the tenants are to file and serve any further evidence limited to the question of whether the tenants were COVID-19 impacted and any evidence relevant to the exercise of any discretion to terminate the tenancy and/or make a finding under s 89(5) of the RT Act. (ii) On or before 21 days after the date of these orders, the landlords must file and serve any evidence in reply, limited in the same way as order (i). (iii) On or before 28 days after the date of these orders, the tenants must file and serve any evidence in response. (iv) The evidence from each party must include a completed Financial Statement (COVID-19) form, a copy of which can be found on the Tribunal website. (v) Evidence from all witnesses must be in a form of a written signed statement, statutory declaration or affidavit. (vi) All witnesses must be available for cross-examination. (vii) No party may rely on evidence served after the dates provided above without leave of the Tribunal, which leave will only be granted in exceptional circumstances. (viii) The proceedings are to be listed at the first available date as determined by the Registrar, such date to be not later than 27 November 2020. Catchwords: LAND LAW – Residential tenancy agreement – termination of tenancy for non-payment of rent – COVID-19 pandemic – prohibition on giving termination notice in moratorium period – relevance of income of tenant who is not a rent paying member of a household in determining if household and tenant are impacted by the COVID-19 pandemic. PRACTICE AND PROCEDURE –conciliation process unsuccessful and hearing completed – Parties not afforded opportunity to present evidence and ask questions Legislation Cited: Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Serious v Barlow; Barlow v Serious [2020] NSWCATCD 3 Texts Cited: Nil Category: Principal judgment Parties: Arash Hassani (First Appellant) Amir Hassani (Second Appellant) Esmaeil Hassani (Third Appellant) Khadijeh Etemadifar (Fourth Appellant) Tasneem Afzal (First Respondent) Naureen Malik (Second Respondent) Representation: First and Second Appellants (Appellants) K Williamson (Agent) (Respondent) File Number(s): AP 20/36941 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 August 2020 Before: C Marzilli, General Member File Number(s): RT 20/26954