Moffatt v Muscat [2023] NSWCATAP 100

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moffatt v Muscat [2023] NSWCATAP 100 Hearing dates: 27 March 2023 Date of orders: 5 April 2023 Decision date: 05 April 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member R Titterton OAM, Senior Member Decision: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Orders 1 to 6 made on 17 January 2023 in proceedings RT 22/45596 are set aside and in their place proceedings RT 22/45596 are otherwise dismissed. 4. If the respondents wish to set aside the order substituted order dismissing proceedings RT 22/45596 and seek different orders in its place: (a) they are to file and serve within 14 days of the date of this decision: (i) any application setting out setting out the orders sought; (ii) evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit; (iii) written submissions in support which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with within 14 days of the date of this decision; (b) the appellant is to file and serve within 28 days of the date of this decision: (i) any evidence as to the amount owing under the residential tenancy agreement on the assumption that it had not been terminated by order 3 of the 17 January 2023 orders if she disagrees with the amount claimed by the respondents and any further evidence of relevant circumstances since 17 January 2023 which is to be by affidavit; (ii) written submissions in opposition to the orders sought by the landlords which are not to exceed three pages and are to address the question of whether a hearing can be dispensed with; (c) the respondents are to file and serve within 35 days of the date of this decision any written submissions in reply which are not to exceed two pages. Catchwords: APPEALS — Appeal on question of law – Principles governing – Questions of law in notice of appeal raising jurisdictional error, procedural fairness and no evidence to support decision – No errors of law APPEALS — Leave to appeal — Principles governing – Leave to appeal granted APPEALS — New hearing - Principles governing LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent and outgoings — Failure to pay - Whether rental subsidy received by the landlords subject to Quistclose trust – Principles to determine the existence of Quistclose trust - No Quistclose trust Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - ss 38, 80, 81, 83, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW) - r 25 Residential Tenancies Act 2010 (NSW) - ss 83, 87, 88 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Bauskis v Liew [2013] NSWCA 297 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Collins v Urban [2014] NSWCATAP 17 Fraser v Sperling [2017] VSCA 53 Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 McSteen v Architects Registration Board of Victoria [2018] VSCA 96 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 PR v MDM [2020] NSWCATAP 151 Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 135 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Thomas v R (1937) 59 CLR 279; [1937] HCA 83 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Hailee Moffatt (Appellant) Frank Muscat and Robert Muscat (Respondents) Representation: Solicitors: Legal Aid NSW (Appellant) Ms V Muscat (Respondents) File Number(s): 2023/00032686 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 17 January 2023 Before: P French, Senior Member File Number(s): RT 22/45596