Dayeian v Davidson [2010] NSWCA 42

Reported Decision: 76 NSWLR 512

New South Wales Court of Appeal

CITATION: Dayeian v Davidson [2010] NSWCA 42

HEARING DATE(S): 15 February 2010

JUDGMENT DATE: 23 March 2010

JUDGMENT OF: Basten JA at 1; Campbell JA at 2; Macfarlan JA at 87

1(a) Substitute the name of Nyree Susanne Dayeian for the name of the Applicant in these proceedings. (b)Substitute the name of Cameron Frederick Baden Davidson for the name of the Respondent in these proceedings. 2 Grant leave to appeal. 3 Appeal allowed. DECISION: 4 Set aside the orders in the District Court on 28 August 2009 and in place thereof: (a) dismiss the appeal to the District Court; (b) order that the appellant in the District Court pay the Respondent's costs of that appeal. 5 Respondent to pay Applicant's costs of the application for leave to appeal, and Appellant's costs of the appeal, but to have a certificate under the Suitors Fund Act 1951. 6 Stay operation of these orders for three months from the date of handing down of reasons for judgment in this matter.

CATCHWORDS: LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – definition of residential tenancy agreement – formal requirements – construction and interpretation of agreement – surrounding circumstances – LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – term of residential tenancy agreement – duration of residential tenancy agreement stated as "for life or as long as tenant wishes to stay" – certainty of term – whether an agreement "for a fixed term" – CONTRACTS – general contractual principles – lack of consideration – lack of intention to enter contractual relations – incorrect reliance on subsequent conduct in interpretation of contract – ADMINISTRATIVE LAW – judicial review – power of review under s 67 Consumer, Trader and Tenancy Tribunal Act 2001 – review permitted in relation to incorrect decision with respect to matter of law as opposed to jurisdictional error – need for there to be a decision with respect to a particular matter of law before a right of appeal under s 67 arises – lack of power of District Court to make orders in nature of prerogative relief concerning decisions of Tribunal – importance of identifying precise ground of complaint about a decision of the Tribunal before choosing to bring a s 67 appeal to District Court or application for prerogative relief to Supreme Court – ADMINISTRATIVE LAW – particular tribunals or bodies – Consumer, Trader and Tenancy Tribunal – extent of obligation to give reasons – whether failure to give reasons constitutes erroneous decision with respect to a matter of law