O’Connor v McManus [2022] NSWCATAP 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Connor v McManus [2022] NSWCATAP 93 Hearing dates: 15 February 2022; 14 March 2022 Date of orders: 15 March 2022 Decision date: 30 March 2022 Jurisdiction: Appeal Panel Before: Principal Member, The Hon D A Cowdroy AO QC ADCJ Senior Member, Mr P H Molony Decision: (1) An extension of time is granted to the appellant to bring the appeal; (2) The appeal be upheld; (3) The proceedings be remitted for determination by a Tribunal differently constituted of the following issues: (a) did the appellant become aware of the breach of the residential tenancy agreement for non-payment of water charges: (i) after three months of each water charge being notified to the tenant? Or (ii) only after the respondent refused to make payment of the water charges at the conclusion of the lease? (b) whether in the circumstances an extension of time is required to institute proceedings to recover water charges, other than the charges of 11 August 2021 and 14 September 2021 ; (c) whether an extension of time should be granted to the appellant in which to bring the claim for unpaid water charges; (d) if so, to determine whether the respondent is liable for such charges; and (e) if so, the period for which the respondent is liable taking into consideration the fact that some of the water charges were raised more than six years since the claim was made. (4) The proceedings be referred to the Registrar for allocation of a hearing date. Catchwords: APPEAL – residential tenancies – claim by landlord for arrears of water charges – whether appellant landlord was denied natural justice – failure of Tribunal to explain to the appellant that he was entitled to apply for an extension of time in which to bring her claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Bobolas v Waverley Council (2016) 92 NSWLR 406 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Italiano v Carbone [2005] NSWCA 177 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Texts Cited: Judicial Review of Administrative Action, 4th edition (2009) Law Book Co Category: Principal judgment Parties: Humphrey O'Connor (Appellant) Tyra McManus (First Respondent) Nicholls Phillip (Second Respondent) Representation: Solicitors: John Joseph Solicitors (Appellant) J Saxelby (Agent)(Respondent) File Number(s): 2021/00341083 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 02 November 2021 Before: A Blair, General Member File Number(s): RT 21/42065 & RT 21/40159