Barkat v Sun [2022] NSWCATCD 46

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barkat v Sun [2022] NSWCATCD 46 Hearing dates: 7 March 2022 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The application is dismissed. Catchwords: LAND LAW — Residential Tenancies Act 2010 — Discretion to declare that an agreement is a residential tenancy agreement — Discretion to order a landlord to enter into a written residential tenancy agreement Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Barkat v Sun [2021] NSWCATAP 327 Texts Cited: Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated) Category: Principal judgment Parties: Mark Barkat (First Applicant) Rubina Barkat (Second Applicant) Zechao Sun (First Respondent) Aiqing Xu (Second Respondent) Representation: First and Second Applicant (Self-represented) D Wang (First and Second Respondent) File Number(s): RT 21/44010 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Mark and Rubina Barkat (the tenants) for orders under ss 11 and 16 of the Residential Tenancies Act 2010 (RT Act) that would, respectively, declare that an agreement under which they occupy premises is a residential tenancy agreement within the meaning of s 13 of that Act, and which would require Zechao Sun and Aiqing Xu (the landlords) to prepare and enter into a written residential tenancy agreement with them in accordance with the terms of an oral agreement they say was concluded on 26 July 2020. This application was made to the Tribunal on 17 September 2020 (the application). 2. I note that at the time the application was made, the tenants also sought orders pursuant to ss 111 and 115 of the RT Act in relation to an end-of-fixed-term termination notice that had been issued to them by the landlords on 13 July 2020 under s 84 of the RT Act. On 10 May 2021 the landlords made an application to the Tribunal for a for a termination order based on that termination notice. The Tribunal dismissed that application on 2 June 2021 on the basis that the application has been made outside the time period permitted by s 83(2)(a) or the RT Act Regulation 39(4)(a), which is within 30 days after the date for termination specified in the notice. Consequently, nothing remains in relation to this element of the dispute. 3. On 25 November 2021 the landlords issued the tenants with a termination notice under s 85 of the RT Act which required them to return possession of the premises on 1 March 2022. The tenants have not done so. On 7 March 2022 the landlords made an application to the Tribunal for a termination order based on that notice which is listed for Conciliation and Hearing on 28 March 2022. It is not before me for determination.