Chatterjee v Pandya [2024] NSWCATAP 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chatterjee v Pandya [2024] NSWCATAP 85 Hearing dates: 16 May 2024 Date of orders: 23 May 2024 Decision date: 23 May 2024 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member E Bishop SC, Senior Member Decision: (1) The appeal is allowed. (2) The orders of the Tribunal dated 25 January 2024 in Case number 2023/00469396 are set aside. (3) The Appeal Panel orders, pursuant to s 85 of the Residential Tenancies Act 2010 (NSW), the residential tenancy agreement between Jay Pandya (landlord) and Joydeep Chatterjee and Sangi Chatterjee (tenant) for residential premises at BLACKTOWN NSW 2148 is terminated on 30 June 2024 and vacant possession is to be given on or before 30 June 2024. (4) If the tenant gives the landlord vacant possession prior to 30 June 2024, the tenant is only liable to pay rent up to the date of vacant possession Catchwords: APPEALS — Error on a question of law — Procedural fairness — Retaliatory eviction — Issue not raised and considered by Tribunal at hearing — Whether failure to raise issue constitutes denial of procedural fairness LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Retaliatory eviction — s 115 of the Residential Tenancies Act 2010 (NSW) — Circumstances in which issue can be raised in response to application to terminate tenancy under s 85 of the Residential Tenancies Act 2010 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 81 Civil and Administrative Tribunal Rules 2014 (NSW), r 23 Residential Tenancies Act 2010 (NSW), ss 80, 82, 85, 115, 190 Residential Tenancies Regulation 2019 (NSW), reg 39 Residential Tenancy Regulation 2010 (NSW) Cases Cited: Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 CKG v Public Guardian [2014] NSWCATAP 32 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Gerringong Housing Aboriginal Corporation v Williams [2022] NSWCATCD 133 Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 Italiano v Carbone [2005] NSWCA 177 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Mercieca v Fu [2017] NSWCATAP 205 Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Quader v Bell [2016] NSWSC 623 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Shandil v Tahany Pty Ltd [2024] NSWCATAP 82 Shrestha v Migration Review Tribunal (2005) 229 FCR 301; [2015] FCAFC 87 Simjanovska v Dogan [2023] NSWCATAP 69 Steinbeck v McDonald [2015] NSWCATAP 90 Touma v Colantuono [2021] NSWCATAP 152 Whitehead v Anglicare Community Services [2023] NSWSC 614 Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 Texts Cited: None cited Category: Principal judgment Parties: Sangi Chatterjee (Appellant) Jay Pandya (Respondent) Representation: Appellant (self-represented) S Dalal, agent (Respondent) File Number(s): 2024/00035370 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 25 January 2024 Before: S Sutherland, General Member File Number(s): 2023/00469396