Fabrizio v NSW Land and Housing Corporation [2016] NSWCATAP 21

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fabrizio v NSW Land and Housing Corporation [2016] NSWCATAP 21 Hearing dates: 19 January 2016 Date of orders: 21 January 2016 Decision date: 21 January 2016 Jurisdiction: Appeal Panel Before: Deputy President, S Westgarth Decision: Application for reinstatement dismissed Catchwords: Reinstatement application – S55(2) - Extension of time S41. Legislation Cited: Civil And Administrative Tribunal Act 2014 (NSW) Residential Tenancies Act 2010(NSW) Cases Cited: Jackson v NSW Land and Housing Corporation[2014]NSW CATAP22 Category: Principal judgment Parties: Namka Fabrizio (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Appellant; self-represented Respondent; Mr McMeniman of Counsel: File Number(s): AP 15/67911 Publication restriction: Nil Decision under appeal Court or tribunal: Civil And Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 27 November 2015 Before: G. Kinsey File Number(s): SH 15/61665

REASONS FOR DECISION

Introduction 1. This is an application under section 55(2) of the Civil and Administrative Act 2013(NSW) ("the Act") for reinstatement of appeal proceedings that were dismissed under s55(1)(c) by reason of the appellant failing to appear at the call over of the appeal on 6 January 2016. 2. The background leading up to the application described above may be summarised as follows; 1. On the 27 November 2015 the Tribunal acting in its Consumer and Commercial Division made orders for the residential tenancy agreement between the parties to be terminated on 7 December 2015 with possession to be given to the landlord on that date. The applicant landlord (now the respondent to this appeal) sought an order for termination pursuant to s91(a) of the Residential Tenancies Act 2010(NSW)(RTA) on the basis that the appellant (the tenant) intentionally or recklessly permitted the use of the rented premises for the supply of a prohibited drug. The evidence tendered included evidence of the appellant having been convicted of drug related offences including "supply a prohibited drug". 2. On 22 December 2015 the appellant lodged a notice of appeal as well as an application for a stay of the operation of the original decision pending the appeal. The grounds of the appeal will be described later in these reasons. The appellant acknowledges in the notice of appeal that she was not present at the hearing 27 November 2015. 3. An Appeal Panel of the Tribunal dealt with the application for a stay and published a decision on 23 December 2015. The Appeal Panel decided not to grant the stay on an ex parte basis but rather called for the appeal to be listed for a callover early in the New Year so that the stay application could be dealt with. That order was posted to the parties on or about 23 December 2015. 4. On the same day (23 December 2015) the Tribunal published to the parties a "Notice of Callover and Hearing to Determine Stay on Original Orders" and that notice advised that an Appeal Panel would hear the callover of the appeal and the hearing concerning the application for stay of the original order at 10:00am on 6 January 2016. 5. The appellant did not appear on 6 January 2016 and as a consequence the appeal was dismissed under s55(1)(c). On the same day the Tribunal published to the parties the decision of the Appeal Panel dismissing the appeal. 6. On 14 January 2016 the Tribunal received an email from the appellant seeking to have the appeal reinstated. That resulted in the application for reinstatement being listed and heard on 19 January 2016.