Sefton & Jacobs v Yeend [2017] NSWCATCD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sefton & Jacobs v Yeend [2017] NSWCATCD 82 Hearing dates: On the papers Decision date: 01 September 2017 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: (1) A hearing for the determination of this application is dispensed with; and

(2) The application is dismissed. Catchwords: Jurisdiction – parties in different States Legislation Cited: Civil and Administrative Tribunal Act 2013 Commonwealth of Australia Constitution Act Judiciary Act 1903 Residential Tenancies Act 2010 Cases Cited: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 Magaming v The Queen [2013] HCA 40; 252 CLR 381 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Category: Consequential orders (other than Costs) Parties: Darby Sefton (Applicant) Anna Jacobs (Applicant) Richard Yeend (Respondent) Representation: File Number(s): RT 17/27219 Publication restriction: Unrestricted

reasons for decision

Background 1. These proceedings concern an application brought on the initiative of the Tribunal to dismiss the substantive application by reason of the fact that the Tribunal may not have jurisdiction to determine the dispute between the parties. It is necessary to set out some background as follows: 1. The applicants (the tenants) and the respondent (the landlord) entered into a residential tenancy agreement on 23 February 2016. The respondent is named as the landlord in the residential tenancy agreement and the contact details for the respondent are "c/- Richardson and Wrench Double Bay"; 2. The applicants filed an application in the Tribunal on 16 June 2017 seeking compensation under the Residential Tenancies Act, 2010 NSW (the RT Act) alleging the premises were "unusable or uninhabitable or destroyed"; 3. The application sought an order for the payment of an amount of money under s 187(1)(c), an order as to compensation under s 187(1)(d) and an order under s 45 of the RT Act reducing the rent payable. The tenant is able to bring an application to the Tribunal in relation to a breach of a residential tenancy agreement by virtue of s 190 of the RT Act; 4. On 7 July 2017 the Tribunal received a letter from Richardson and Wrench on behalf of the landlord. That letter stated that the Tribunal does not have jurisdiction because the landlord's place of residence is South Australia. The letter referred to the decision of the New South Wales Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 and elsewhere in the letter stated that the landlord's "principal place of residence is in South Australia". Based upon the authority of the Burns v Corbett case, the agent asserted that the Tribunal does not have jurisdiction; 5. On the same day the proceedings were listed before the Tribunal and the Tribunal made an order that the hearing of the application be adjourned to a date to be fixed pending determination of the appeal before the High Court in Burns v Corbett; 6. I caused the proceedings to be relisted because the record of the orders made on 7 July 2017 did not record whether the Tribunal had afforded to the parties the opportunity to consider whether the better course would be for the proceedings to be dismissed so that the applicants could, if they wished, commence proceedings in an appropriate Court; and 7. The Tribunal made directions for the parties to make submissions as to whether the existing order should remain in place (thus leaving the proceedings adjourned pending the outcome of the proceedings referred to in the order of 7 July 2017) or whether the proceedings should be dismissed. The directions sought submissions as to whether the Tribunal could decide this application on the papers.