ADAMSON v EDE [2009] NSWCA 403

New South Wales Court of Appeal

CITATION: ADAMSON v EDE [2009] NSWCA 403

HEARING DATE(S): 26 August 2009

JUDGMENT DATE: 10 December 2009

JUDGMENT OF: Allsop P at 1; Basten JA at 1; Sackville AJA at 1

(1) Extend the time for filing the notice of appeal to 1 April 2009. DECISION: (2) Dismiss the appeal. (3) Order the appellant to pay the respondent's costs of the proceedings in this Court.

CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – hearing rule – cross-summons filed prior to hearing – whether reasonable opportunity to contest cross-summons – inconsistent pleadings – concession of existence of lease by claim that it should be set aside – denial of existence of lease – whether prejudice suffered by the appellant - COSTS – general rule – cross-summons partly successful – costs awarded against cross-defendant – serious allegation of improper conduct – relief in cross-summons awarded without examination of allegation – no finding of misconduct in making allegation – whether grounds for interfering with exercise of discretion - LANDLORD AND TENANT – leases and tenancy agreements – special conditions of lease – conditions highly favourable to tenant – tenant to become beneficial owner of two-thirds interest in leased property – tenant entitled to rental rebates for various services – whether conditions unjust in the circumstances – Contracts Review Act 1980 (NSW), s 7(1) - PROCEDURE – application to re-open hearing – application for equitable set-off and defence – not field or served prior to day of judgment – whether application ought to have been entertained - WORDS AND PHRASES – "residential tenancy agreement" – "special conditions"

Contracts Review Act 1980 (NSW), s 7 LEGISLATION CITED: Fair Trading Act 1987 (NSW), ss 42, 72 Residential Tenancies Act 1987 (NSW), s 9 Residential Tenancies (Residential Premises) Regulation 1995 (NSW)