SOARE & ANOR v RESIDENTIAL TENANCIES TRIBUNAL/RESIDENTIAL TRIBUNAL & ORS [1999] NSWSC 1003

New South Wales Supreme Court CITATION : SOARE & ANOR v RESIDENTIAL TENANCIES TRIBUNAL/RESIDENTIAL TRIBUNAL & ORS [1999] NSWSC 1003 CURRENT JURISDICTION : Common Law Administrative Law List FILE NUMBER(S) : 30039 of 1999 HEARING DATE(S) : 31 August 1999 JUDGMENT DATE : 1 October 1999

Sorin Soare and Liliana Soare-Cernaianu (Plaintiffs) PARTIES : v Residential Tribunal (First Defendant) Christiano Bagnara and Giacinta Bagnara (Second Defendants) JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Residential Tenancies Tribunal/Residential Tribunal LOWER COURT FILE NUMBER(S) : 99/01365 LOWER COURT JUDICIAL OFFICER : N Vrabac

Mr R Killalea (Plaintiffs) COUNSEL : Submitting Appearance (First Defendant) Dr J G Renwick (Second Defendants)

Kalmath Lawyers (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor, Submitting appearance (First Defendant) Kemp Strang (Second Defendants) CATCHWORDS : Appeal where a question with respect to a matter of law has been decided; No question of law. Residential Tenancies Act 1987, s 65 (2) (b), s 57, s 107, s 110. ACTS CITED : Residential Tribunal Act 1998, s 63. Supreme Court Rules 1970, Pt 13, r 5. CASES CITED : RTA v Swain (1997) 41 NSWLR 452. DECISION : See paragraph 20

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER MALPASS

FRIDAY 1 OCTOBER 1999

30039/1999 SORIN SOARE & ANOR v RESIDENTIAL TENANCIES TRIBUNAL/RESIDENTIAL TRIBUNAL & ORS JUDGMENT 1 In 1995, the plaintiffs became the tenants of premises known as 2/5 Bowman Street, Richmond (the premises). The landlords were the second defendants. 2 It appears that the plaintiffs made a claim for damages which related to a defective hot water service. It had been brought out of time and was dismissed on 6 January 1999 by the Residential Tenancies Tribunal (the tribunal). The second defendants served a Notice of Termination and also brought an application for termination and vacant possession of the premises in the tribunal. 3 On 2 February 1999, by Summons the plaintiffs commenced proceedings in this Court. The process sought the setting aside of the order dismissing their application. In relation to that matter, the plaintiffs were claiming that there had been a denial of natural justice, a failure to consider all orders sought and a failure to fully give an opportunity to fully present claims. 4 The second defendants' application in the tribunal came before a member (Mr Vrabac). There was a hearing on 23 February 1999. The plaintiffs appeared in person. They were provided with a Romanian/French interpreter. Mr Devine of Havelock Real Estate appeared for the second defendants. Certain findings were made. Certain orders were made. This material may be found in a written document which records the orders made and the reasons for the "interim decision". It was the second defendants' case that there had been a breach of the agreement by reason of the non-payment of rent. The plaintiffs advanced an argument that by reason of the contents of a letter dated 4 June 1998 there had been a waiver in relation to the payment of rent. The member found that there had been no such waiver. He found that there had been a breach of the agreement by reason of the arrears in rental. An order was made to pay the arrears of $520 by 9 March 1999. Questions of hardship were argued. The member found that the hardship seemed to be greater on the second defendants than the plaintiffs. He further found that the second defendants were entitled to issue a Notice of Termination pursuant to s 57 of the Residential Tenancies Act 1987 (the Act). The further hearing of the second defendants' application (including the issue of retaliation) was adjourned to another hearing day.