Francer v Smith [2023] NSWCATCD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Francer v Smith [2023] NSWCATCD 82 Hearing dates: 1 June 2023 Date of orders: 20 July 2023 Decision date: 20 July 2023 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: The application is dismissed as the Tribunal does not have jurisdiction to hear and determine it. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists Cases Cited: Case v Frimont [2021] NSWCA 30 Sutcliffe v Hennessy [2017] NSWCATCD 77 Texts Cited: None Category: Principal judgment Parties: James Francer (applicant) Eloise Smith (respondent) Representation: Parties appeared in person. File Number(s): RT 23/12009

Reasons for decision 1. This is an application for termination of a residential tenancy under the Residential Tenancies Act 2010 ("Act"). 2. The first issue to be determined is whether there is a residential tenancy agreement between the applicant (as landlord) and the respondent (as tenant). If there is no residential tenancy agreement, the Tribunal does not have jurisdiction to hear and determine the application for termination. 3. Both parties filed documentary material in support of their cases and gave oral evidence. 4. The background facts are not in dispute: 1. The applicant is the legal owner of the property. 2. The applicant and respondent were in a relationship, and have a child together. The parties resided at the property together for a number of years until October 2019. 3. In October 2019, the parties separated and the applicant vacated the property. The respondent remained at the property with the parties' child. 4. The child ceased living at the property in 2020, and the paternal grandmother now has sole parental responsibility for the child. 5. In about June 2022, the applicant told the respondent she would need to leave the property. 6. There has been no family law property settlement, or proceedings.