Minotti v Bird [2012] NSWDC 241

District Court New South Wales

Medium Neutral Citation: Minotti v Bird [2012] NSWDC 241 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Jurisdiction: Civil Before: Murrell SC DCJ Decision: Appeal dismissed. Termination and possession orders made by the Tribunal confirmed. Catchwords: LANDLORD AND TENANT- 'give' notice- termination of tenancy- rent arrears- hardship to landlord- procedural fairness Legislation Cited: Residential Tenancies Act 2010 (NSW) ss 87, 88, 89, 93, 223 Consumer Trader and Tenancies Tribunal Act 2001 (NSW) ss 28(3), 49(3) Interpretation Act 1987 (NSW) s 76(1)(b) Cases Cited: Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298 NSW Land and Housing Corporation v Dale [2005] NSWCTTT Category: Principal judgment Parties: Mr Kevin Minotti (plaintiff) Mrs Margaret Minotti (plaintiff) Mr S Green (defendant) Representation: Mr Kevin Minotti (plaintiff) Green & McKay Solicitors (defendant) File Number(s): 2012/164041

Judgment 1Mr and Mrs Minotti (the tenants) contend that the Consumer Trader and Tenancy Tribunal (the Tribunal) erred in law when, on 7 May 2012, the Tribunal terminated a tenancy agreement between the tenants and Mr and Mrs Bird (the landlords), and ordered that the landlords be given possession of their Coffs Harbour premises. 2The tenants were substantially in arrears with their rent. On 27 March 2012, the landlords' agent left a termination notice in an envelope addressed to the tenants in the tenants' mailbox. On 28 March 2012, the tenants paid all rent arrears. At about that time, the termination notice came to the attention of the tenants. At the Tribunal hearing, the tenants asserted that they had been absent from Coffs Harbour until late on 28 March and it was not until 29 March that the notice came to their attention. The Tribunal recorded no firm finding on this point. For the purposes of the appeal, I will assume that it was on 29 March that the notice came to the attention of the tenants. 3The tenants contend that the Tribunal erred in that: (1)The Tribunal found that the termination notice was served on 27 March rather than on 29 March. Consequently, the Tribunal erroneously held that, when the notice was served, the tenants were in arrears with their rent. (2)The ground for termination that was identified in the termination notice was the failure to pay rent for not less than 14 days (the ground specified in s 88(1) of the Residential Tenancies Act 2010), but the Tribunal terminated the agreement on different bases i.e. the frequent failure to pay rent (s 89(5)) and undue hardship to the landlord (s 93(1)), when neither of those grounds was nominated in the notice.