Dokas v Gallagher [2024] NSWCATAP 129

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dokas v Gallagher [2024] NSWCATAP 129 Hearing dates: 20 June 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Sarginson, Senior Member Decision: (1) The time to lodge the appeal is extended to 26 April 2024. (2) Leave to appeal is granted in connection with the issue of whether the Tribunal was in error in failing to conclude the rent increase or the rent was excessive and make an order under s 44(1)(a) or (b). However that appeal is dismissed. (3) Leave to appeal is otherwise refused and the appeal is otherwise dismissed. (4) The order made by the Appeal Panel on 26 April 2024, extended by order dated 8 May 2024, suspending the order for possession, is vacated and the date for possession in order 3 made on 27 March 2024 in application 2024/00021232 is varied so that the order for possession is suspended until 28 days from the date of publication of the orders in this appeal. Catchwords: LANDLORD AND TENANT – application for termination for non-payment of rent – tenant failing to pay the amount of the rent increase – whether the notice of rent increase was valid – whether the Tribunal was in error in failing to deal with an excessive rent claim under s 44(1)(a) and (b) of the Residential Tenancies Act 2010 (NSW) – whether the premises were uninhabitable – whether the termination notice for non-payment of rent was retaliatory PRACTICE AND PROCEDURE – whether time should be extended to lodge the notice of appeal – whether leave to appeal should be granted in circumstances where Tribunal may have failed to exercise jurisdiction– whether the Tribunal failed to exercise jurisdiction – requirements to prove such a failure Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 Al-Daouk v Mr Pine t/as Furnco Bankstown [2015] NSWCATAP 111 Chatterjee v Pandya [2024] NSWCATAP 85 Collins v Urban [2014] NSWCATAP 17 Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Mulcair v Callum [2024] NSWCATAP 30 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Texts Cited: Nil Category: Principal judgment Parties: Appellants: Tobias Lazarus Dokas (First Appellant) Lazarakis Dokas (Second Appellant) Respondent: David Gallagher Representation: Appellants: Self represented Respondent: Self represented File Number(s): 2024/00155225 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 27 March 2024 Before: M Hung, General Member File Number(s): 2024/00021232, 2024/00064426