Bartlett v Hewitt [2016] NSWCATAP 40

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bartlett v Hewitt [2016] NSWCATAP 40 Hearing dates: 16 December 2015 Date of orders: 16 December 2015 Decision date: 10 February 2016 Jurisdiction: Appeal Panel Before: O'Connor AM, ADCJ, Deputy President Appeals K Rosser, Senior Member Decision: The appeal is dismissed. Catchwords: RESIDENTIAL TENANCY – Appeal against dismissal of tenant's application for retaliatory eviction declaration - Further decision since lodgment of appeal dismissing landlord's termination application - No longer any live controversy – Tenant's appeal dismissed for want of jurisdiction. Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Category: Principal judgment Parties: Greg Bartlett (Appellant) Michael Hewitt (Respondent) Representation: W Wheeler (agent, appellant) L Hillyer (agent, respondent) File Number(s): 15/56191 Decision under appeal Court or tribunal: Bartlett v Hewitt Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCATCD Date of Decision: 23 September 2015 Before: R Bailey, General Member File Number(s): 15/43153

REASONS FOR DECISION 1. In this case short oral reasons were delivered at the conclusion of the hearing on 11 December 2015. The appellant's appeal was dismissed. The appellant has requested written reasons. The transcript of the judgment was supplied on 9 February 2016. This is a revised version of the oral reasons. 2. HIS HONOUR: The Tribunal has before it today an appeal by Mr Bartlett, a tenant, against Mr Hewitt, the landlord, in relation to residential premises at Berrima. 3. Mr Warren Wheeler from the Illawarra & South Coast Tenants Services is here representing Mr Bartlett who is also present. Ms Louise Hillyer is here as the estate agent for Mr Hewitt. 4. Section 115 of the Residential Tenancies Act 2010 (retaliatory evictions) provides for a tenant to obtain a declaration from the Tribunal that the issuance of a termination notice is retaliatory. Certain consequences flow from that. Mr Bartlett made such an application. The Tribunal at first instance dismissed the application and that order is the foundation for the appeal: see Bartlett v Hewitt, 23 September 2015 (Consumer and Commercial Division (CCD), Bailey GM), Order 3. The notice of appeal was filed on 9 October 2015. 5. An internal appeal may be made on a question of law. An appellant may apply for leave to extend the appeal to other grounds. See Civil and Administrative Tribunal Act 2013, s 80(2)(b). In the case of appeals from the CCD, leave to extend the appeal to other grounds may only be granted if the Appeal Panel 'is satisfied that the appellant may have suffered a substantial miscarriage of justice' for one or more of three reasons, which we need not set out here: see cl 12 of Schedule 4. 6. We have had a short discussion with the parties at the commencement of these proceedings (see transcript of hearing). 7. The Appeal Panel has formed a view that it is either without jurisdiction to proceed or there is no utility in continuing to proceed. The reason is that the application for termination upon which these proceedings depend has itself now been dismissed on 11 November 2015 by the Tribunal (constituted as previously by Bailey GM) for want of jurisdiction. The circumstances giving rise to that ruling related to an error in the timing of the action taken under the termination notice by the agent. 8. For there to be a continuing controversy in relation to an alleged retaliatory eviction there needs to be a primary application for a termination order from the landlord that remains on foot to which any declaration to do with retaliation might be relevant. That circumstance no longer exists as a result of the order made 11 November. So that renders these appeal proceedings either without jurisdiction which is our preferred view, or, alternatively, the appeal lacks utility and should not be permitted to proceed. 9. The position as it stands today is that the tenant, Mr Bartlett, has been restored to an unqualified periodic tenancy. Ms Hillyer has indicated here today, as I understand it, that she has instructions to proceed with a new application for termination which will be a 90 day no grounds notice. 10. So it remains the case that that application might lead to the position that either the tenant vacates or remains in occupation in breach of the notice because the time given for vacating the premises is earlier than is convenient to the tenant. 11. Mr Bartlett has told us here today that he is wishing to continue to occupy the premises until no later than 23 April 2016. As I understand, it the landlord, if he is to re-proceed, will proceed by way of an orthodox application for termination; and not seek to utilise any out-of-time procedure of a kind that Mr Wheeler referred to. 12. I think that is all we need to say today. They are our reasons for not going to the substance of the matter. 13. We understand that the substance of Mr Bartlett's concern was over statements that he made in relation to the landlord making a heritage development application. 14. APPELLANT: The heritage notice was actually based on him issuing a notice upon learning that he was in breach of 9.3. 15. HIS HONOUR: We won't go there. Anything we say shouldn't be seen as either agreeing or disagreeing with what the Tribunal said below. 16. APPELLANT: Thank you. 17. HIS HONOUR: That issue no longer remains a live issue for the reasons I have given. The appeal is dismissed.