Duncan v Freeman [2015] NSWCATCD 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Duncan v Freeman [2015] NSWCATCD 14 Hearing dates: 14 January 2015 Date of orders: 14 January 2015 Decision date: 21 January 2015 Jurisdiction: Consumer and Commercial Division Before: J Levingston General Member Decision: 1. The Tribunal declares that there was a residential tenancy agreement incorporating the standard form of residential agreement appearing in the Regulations Schedule 1. 2. The application is dismissed. Catchwords: Residential tenancy – jurisdiction – termination – defective notice of termination – request for written reasons Legislation Cited: Civil and Administrative Tribunal Act 2013 s62

Residential Tenancies Act 2010 ss11, 82, 85 Cases Cited: Bruton v London and Quadrant Housing Trust [1999] 3 All ER 481 (HL) Category: Principal judgment Parties: Wendy Duncan (applicant) Julie Freeman (respondent) File Number(s): RT 15/01426 Publication restriction: Nil

Judgment 1. These formal written reasons are provided following a written request made 14 January 2015 by the applicant landlord pursuant to the Civil and Administrative Tribunal Act 2013 (CATA) s62 (Tribunal to give notice of decision and provide written reasons on request) which provides: (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. and see previously Consumer and Trader and Tenancy Tribunal Act (repealed) s49 (Notice of decisions and reasons). 1. These written reasons are provided in addition to the brief oral reasons provided at the hearing: Kendell v BMW Finance Australia Pty Ltd: [1] 2. The meaning of a Tribunal 'decision' is widely defined, and is to be distinguished from reasons, which set out the reasoning process to explain the decision. 3. The decision was given on 14 January 2015 and is recorded in the written Notice of Order which took effect at that time. [2] 4. A party is entitled to know the decision and the reasons for the decision. Reasons are commonly given orally to the parties at the conclusion of the hearing, and no written reasons are usually provided, unless the parties request written reasons. 5. A statement of reasons can be brief, but must set out the decision and the reasons for the decision or any other material on which findings of fact are based. 6. Reasons should be adequate and comprehensive explaining the reasoning [3] being more than a statement of bare conclusions, [4] concise, [5] structured and logical but without being required to be survive a review "…construed minutely and finely with an eye keenly attuned to the perception of error", [6] and "…not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". [7] 7. Written reasons need not be identical to the oral reasons, allowing for correction of grammar and punctuation, but they should not include any additional reasons which were not given orally, though they might be expressed differently without altering the substance. [8]