Basha v Rathsam [2016] NSWCATAP 35

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Basha v Rathsam [2016] NSWCATAP 35 Hearing dates: 19 January 2016 Date of orders: 09 February 2016 Decision date: 09 February 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Anderson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW) - no appeal as of right established- leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) -considered whether leave pursuant to clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) may be granted- leave refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Tanya Basha (Appellant) Leander Rathsam (Respondents) Representation: In person (Appellant) Ms Bassa (Respondent) File Number(s): AP 15/59507 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not Applicable Date of Decision: 26 October 2015 Before: C Campbell, General Member File Number(s): RT 15/57015

reasons for decision

Introduction 1. This appeal is from a decision on 26 October 2015 after a hearing which occurred in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal. The appellant was unsuccessful and the application was dismissed. 2. The appellant tenant claimed in the Tribunal that a notice of termination of the tenancy served on behalf of the respondent landlord was retaliatory and therefore subject to section 115 of the. Residential Tenancies Act 2010 (NSW). The appellant sought that the termination notice be given no effect and an application for compensation be determined in the Tribunal below. 3. The appellant occupies a residential unit where the original Residential Tenancy Agreement provided for a 6 month lease starting 25 September 2013 and ending 24 March 2014. The rental pursuant to that agreement payable per month is $1586.01 and payable in advance on the tenth day of every month. The method of payment is through DEFT Payment System. Since the expiration of the lease period the tenant has remained in occupation. 4. The section primarily relied upon by the appellant provides: "115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice: (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons: (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant." 1. The termination notice was served by mail and sent on 8 October 2015. The deemed date of service is 14 October 2015 and the reason given for the termination of the tenancy agreement is stated in the notice as the end of the periodic agreement in accordance with section 85 of the Residential Tenancies Act. 2. There were earlier proceedings in the Tribunal in 2015 which were resolved by means of a payment plan which ended on 30 June 2015. Despite reference to these proceedings by the appellant that application and resolution have no relevance to the original decision on 26 October 2015 from which the appellant appeals.