Srisivalingam v O'Leary [2023] NSWCATAP 40

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Srisivalingam v O'Leary [2023] NSWCATAP 40 Hearing dates: 8 February 2023 Date of orders: 15 February 2023 Decision date: 15 February 2023 Jurisdiction: Appeal Panel Before: D Charles, Senior Member D Ziegler, Senior Member Decision: 1. Application for extension of time to lodge the appeal to 25 November 2022, is granted. 2. The appeal is upheld in part. 3. Order 1 made by the Tribunal on 8 November 2022 is set aside. 4. The proceedings are remitted back to the Consumer and Commercial Division of the Tribunal, differently constituted, for reconsideration in accordance with these reasons and otherwise according to law. 5. Whether any further evidence is to be allowed in the remitted proceedings is to be determined by the Tribunal. 6. The appeal is otherwise dismissed. Catchwords: APPEALS – whether denial of procedural fairness where leave had not been given to amend claim - adequacy of reasons – finding of fact not supported by the evidence LEASES AND TENANCIES – application of s 52 of the Residential Tenancies Act 2010 Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Civil and Administrative Tribunal Rules (NSW) 2014 Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation (2019) (NSW) Cases Cited: Bhandari v Laming [2015] NSWCATAP 224 Cominos v Di Rico [2016] NSWCATAP 5 Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 Robinson v. Harman [1848] EngR 135 Rockwall Constructions Pty Ltd v Nayak [2017] NSWCATAP 226 Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Texts Cited: None cited Category: Principal judgment Parties: Siv Srisivalingam (Appellant) Rhys O'Leary (First Respondent) Anne Traynor (Second Respondent) Representation: G Baskaran (Agent) (Appellant) First Respondent (Self Represented) Second Respondent (Self Represented) File Number(s): 2022/00358309 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 08 November 2022 Before: P Zammit, General Member File Number(s): RT22/42560