Cooke v NSW Land and Housing Corporation [2016] NSWCATAP 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cooke v NSW Land and Housing Corporation [2016] NSWCATAP 9 Hearing dates: 21 December 2015 Date of orders: 21 December 2015 Decision date: 08 January 2016 Jurisdiction: Appeal Panel Before: M Schyvens – Deputy President T Simon – Senior Member Decision: Appeal dismissed Catchwords: Error of law, residential tenancy, notice of hearing, termination, leave to appeal, non-payment of rent, payment plan Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP Texts Cited: Nil Category: Principal judgment Parties: Roydon Nathan Cooke (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Appellant in person

Counsel: S Gardiner for the respondent File Number(s): AP 15/60852 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 September 2015 Before: P Smith - Member File Number(s): SH 15/44096

Reasons for the Decision

Background 1. The appeal was lodged on 9 November 2015. Mr Cooke, a tenant, is appealing a decision of the Tribunal, made on 21 September 2015, for termination and possession of his residential premises. The application for termination and possession had been made by the landlord, NSW Land and Housing Corporation on 22 July 2015. 2. Mr Cooke did not appear at the Tribunal hearing on 21 September 2015 and orders were made in his absence. Those orders were: 1. The Tribunal is satisfied notice of the hearing was duly served on the respondent 2. The Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. • failure to pay rent in accordance with agreement. 3. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 4. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 5. The order for possession is suspended until 12-Oct-2015 6. The tenant shall pay the landlord a daily occupation fee at the rate of $29.67 per day from the day after the date of termination, namely 22-Sep-2015 until the date vacant possession is given to the landlord. 7. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 8. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 21-Sep-2015 of the orders made today. 9. The tenant, ROYDON NATHAN COOKE, ... is to pay the landlord, NSW LAND AND HOUSING…, the sum of $5,878.81 immediately. Default in the payment of any Instalment will cause the whole of the balance then outstanding to become immediately due and payable. Reasons : • Rent to 21/9/15 $5,470.23 • Water usage $408.58 1. In 'residential proceedings,' an appeal must be lodged within 14 days from the day on which appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b). 2. The appeal has been lodged out of time and Mr Cooke requires an extension of time to appeal. While the parties did not specifically address the issue of an extension of time at the hearing, we were satisfied it was appropriate to extend time for the application pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), (the Act). 3. It is noted that a set-aside application had been made by Mr Cooke following the hearing and was dismissed on 29 October 2015. That set-aside decision was not the subject of this appeal.